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ARTICLES
REMEDIES FOR CALIFORNIA’S DEATH
ROW DEADLOCK
JUDGE ARTHUR L. ALARCÓN∗

I. INTRODUCTION
The unconscionable delay in the disposition of appeals and habeas
corpus proceedings filed on behalf of California’s death row inmates
continues to increase at an alarming rate. It is now almost double the
national average. Procedural changes must be made to the manner in which
death penalty judgments are reviewed to avoid imprisoning a death penalty
inmate for decades before the condemned prisoner’s constitutional claims
are finally resolved.
This Article identifies the woeful inefficiencies of the current
procedures that have led to inexcusable delays in arriving at just results in
∗ Senior Judge, United States Court of Appeals for the Ninth Circuit. Over the course of my
career, I have participated in every aspect of death penalty cases. As a Los Angeles County Deputy
District Attorney, I prosecuted persons accused of first degree murder in which the death penalty was
sought. As the Legal Advisor to Governor Edmund G. “Pat” Brown, I was responsible for conducting
investigations to assist the Governor in deciding whether to grant a commutation of the sentence of a
death row inmate to life imprisonment. As Chairman of the Adult Authority (California Parole Board
for Adult Men), I reviewed applications from prisoners convicted of murder in the first degree and other
felonies who sought to be released on parole. As a Los Angeles County Superior Court judge, I presided
over first degree murder trials in which the prosecution sought the death penalty. As an Associate
Justice on the California Court of Appeal, I reviewed judgments of trial courts in first degree murder
cases where prisoners were sentenced to life without the possibility of parole. As a member of the
United States Court of Appeals for the Ninth Circuit, I have reviewed decisions of federal district courts
that denied the petitions of California death row inmates for federal habeas corpus relief.
I would like to thank my former law clerks, Paula M. Mitchell, graduate of Loyola Law School,
and Virginia F. Milstead, graduate of Pepperdine School of Law, for their energetic, thoughtful, and
conscientious contributions to the research and preparation of this Article. Their work was outstanding.
Any flaws in the recommendations set forth in this Article are mine.

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death penalty cases and describes how California came to find itself in this
untenable condition. It also recommends structural and procedural changes
designed to reduce delay and promote fairness. These recommendations
include: transferring exclusive jurisdiction over automatic appeals from
judgments of death away from the California Supreme Court to the
California Courts of Appeal; requiring that capital case state habeas corpus
petitions be filed in the trial court with the right to appeal to the California
Courts of Appeal, rather than filing the petitions with the Supreme Court in
the first instance; providing adequate training and compensation for
counsel appointed to represent indigent death row inmates; and providing
continuity of counsel for state and federal habeas corpus proceedings.
These changes would significantly reduce delay and promote a more just
resolution for death penalty inmates and society.
II. “JUSTICE DELAYED IS JUSTICE DENIED”1
In a recent interview with the Associated Press, California Chief
Justice Ronald M. George stated that California’s death penalty has become
“dysfunctional” because the California Legislature has failed “to
adequately fund capital punishment” while “death row inmates languish[]
for decades at San Quentin State Prison.”2 Eleven years earlier, my
colleague, Ninth Circuit Judge Alex Kozinski, commented that “we have
little more than an illusion of a death penalty in this country.”3 He also
noted that “the number of executions compared to the number of people
who have been sentenced to death is minuscule, and the gap is widening
every year.”4 Relying on national statistics compiled in 1993, Judge
Kozinski reported that “[t]en years is about the average” for a death penalty
case to come to its conclusion from the date of the commission of the
crime.5
1. William Gladstone, Prime Minister, Speech Addressed to British Parliament Regarding
Disestablishment of Irish Church (Dec. 1868), reprinted in N.Y. TIMES, May 19, 1898, at 7 (reprinting
excerpts from Gladstone’s Career: Fifty Years of Public Life as a Statesman and Political Leader)
(“[I]f we be just men, we shall go forward in the name of truth and right, bearing this in mind, that
when the case is proved and the hour is come, justice delayed is justice denied.”).
2. David Kravets, Top Judge Calls Death Penalty “Dysfunctional”: Legislature Blamed for
Inadequate Funding, SAN JOSE MERCURY NEWS, May 1, 2006, at B4.
3. Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-on Sentence, 46 CASE W. RES. L.
REV. 1, 3 (1995).
4. Id. at 4.
5. See id. at 10 (citing JAMES J. STEPHAN & PETER BRIEN, U.S. DEP’T OF JUSTICE, CAPITAL
PUNISHMENT 1993, at 11 tbl.12 (1993)).

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Judge Kozinski suggested that the solution to the “impasse on the
death penalty”6 would be to decrease the number of crimes punishable by
death and the circumstances under which death may be imposed so that we
only convict “the number of people we truly have the means and the will to
execute.”7 In the twelve years that have elapsed since Judge Kozinski’s
article was published, the California Legislature has not implemented his
suggestion. In fact, the list of special circumstances accompanying first
degree murder that qualify an individual for the death penalty has been
expanded on several occasions.8
Concern over lengthy delays in the processing of death row appeals is
not a recent phenomenon. In 1989, the Judicial Conference of the United
States formed the Ad Hoc Committee on Federal Habeas Corpus in Capital
Cases to make recommendations for legislation to address “piecemeal and
repetitious litigation, and years of delay between sentencing and a judicial
resolution as to whether the sentence was permissible under the law.”9 The
Committee determined that the nationwide average delay at that time—
eight years for federal habeas corpus proceedings—was not “required for
the appropriate habeas review of state criminal proceedings.”10
In 1972, the California Supreme Court held that the death penalty was
unconstitutional.11 It also commented that, at that time, the delays suffered
by those on death row awaiting review of the judgment of death were so
severe that they constituted cruel and unusual punishment in violation of
the California Constitution.12 The delays the court referred to were
6. Id. at 28.
7. See id. at 31.
8. See, e.g., 1998 Cal. Stat. 92 (expanding the special circumstances relating to lying in wait,
kidnapping, and arson); 1995 Cal. Stat. 3557 (adding murder committed during the course of a car
jacking); Proposition 21, § 11 (2000), available at http://primary2000.ss.ca.gov/VoterGuide/
Propositions/21text.htm (expanding first degree murder to include a homicide committed to further the
activities of a street gang). Most recently, on February 22, 2005, Senate Bill No. 817 was introduced to
add to the list of special circumstances a situation in which “[t]he defendant intentionally killed the
victim, who was under 14 years of age and the defendant knew, or reasonably should have known that
the victim was under 14 years of age.” See S. 817, 2005–2006 Reg. Sess. § 1(a)(23) (Cal. 2005),
available
at
http://www.leginfo.ca.gov/pub/05-06/bill/sen/sb_0801-0850/sb_817_bill_20050222_
introduced.html.
9. AD HOC COMM. ON FED. HABEAS CORPUS IN CAPITAL CASES, JUDICIAL CONFERENCE OF
THE U.S., COMMITTEE REPORT AND PROPOSAL 1 (1989) [hereinafter POWELL COMMITTEE REPORT].
10. See id. at 3.
11. See People v. Anderson, 493 P.2d 880 (Cal. 1972).
12. See id. at 894 (“The cruelty of capital punishment lies not only in the execution itself and the
pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to
execution during which the judicial and administrative procedures essential to due process of law are
carried out.”). California later reinstated the death penalty by amending the constitution to state that the
death penalty was not cruel and unusual punishment. See Steven F. Shatz & Nina Rivkind, The

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substantially shorter than the time of imprisonment a death row inmate
must now endure, awaiting a resolution of the challenges to the trial court’s
judgment. In 1972, the longest term a prisoner had spent on death row was
eight years.13 Currently, the average time an inmate spends awaiting
execution is 17.2 years.14 In some capital cases, as demonstrated most
recently in the cases of Richard Ramirez and Clarence Allen, the delay is
much longer.
Richard Ramirez was convicted on November 7, 1989, of committing
thirteen murders, five attempted murders, eleven sexual assaults, and
fourteen burglaries.15 On June 6, 2006, nearly twenty-two years after Mr.
California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L. REV. 1283, 1343 (1997). In
People v. Hill, the California Supreme Court noted that Anderson no longer had any “force or effect”
due to the amendment of California’s constitution. See People v. Hill, 839 P.2d 984, 1017 (Cal. 1992).
It refused to rely on its reasoning in Anderson to conclude that long delays violated the federal
constitution. See id. Whether long delays violate the federal constitution has not yet been determined by
the United States Supreme Court. See, e.g., Allen v. Ornoski, 126 S. Ct. 1139 (2006) (denying certiorari
on the question of the constitutionality of delay).
13. According to the California Supreme Court:
The median elapsed time prisoners now awaiting execution in California had been imprisoned
as of the end of 1968 was 20.7 months. The national median elapsed time was then 33.3
months. The California figures do not take into account prisoners who were awaiting
execution at that time but who have since had their sentences commuted, judgments reversed,
or have been removed from death row for other reasons. As of December 31, 1968, the
median elapsed time condemned prisoners then on death row had been awaiting execution
was 23.7 months. There were a total of 104 persons under sentence of death in California as
of December 31, 1971. Of these, two prisoners have been on death row since 1964, five since
1965, and seven since 1966. Eight were received there in 1967, fifteen in 1968, and thirteen in
1969. Thirty-four were received in 1970 and the remaining twenty in 1971.
Anderson, 493 P.2d at 894 n.37 (internal citation omitted).
14. This figure is based on a comprehensive review of each death row inmate’s actual docket for
cases pending in the California Supreme Court on automatic appeal and habeas corpus, and in the courts
of the United States on habeas corpus and on appeal since the death penalty was reinstated in 1978. The
information was confirmed with data received from the California Department of Corrections and
Rehabilitation as well as the California Supreme Court. The data retrieved from the inmates’ dockets
has been compiled into a database [hereinafter Docket Database], which is on file with the author.
Information is current as of January 19, 2006. The figure reflecting an average delay of 17.2 years
among prisoners executed in California excludes the delay in the execution of David Mason. David
Mason was condemned to death on January 27, 1984 and was executed on August 24, 1993. Because he
waived his right to seek postconviction relief, the length of time he spent on death row is not indicative
of the average length of the appellate process.
15. Docket, People v. Ramirez, No. S012944 (Cal. Nov. 7, 1989), available at
http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr.
Ramirez’s direct appeal:
November 7, 1989: Judgment of Death Entered.
3 years, November 25, 1992: The California Supreme Court appointed counsel for his automatic direct
appeal.
9.8 years, October 4, 1999: After eleven requests for an extension of time to correct the record, the
record on appeal was filed.
12.25 years, March 1, 2002:After eleven requests for an extension of time to file an opening brief, Mr.
Ramirez’s counsel filed a 413-page opening brief.

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Ramirez’s violent crime spree that began in 1984, Mr. Ramirez’s direct
appeal of his conviction was finally argued before the California Supreme
Court.16 On August 7, 2006, the California Supreme Court affirmed his
conviction and sentence.17 Mr. Ramirez will in all likelihood file a petition
for a writ of certiorari to the United States Supreme Court. Mr. Ramirez has
also filed a habeas corpus petition in the California Supreme Court, the
merits of which have yet to be addressed by that court. Once Mr. Ramirez
exhausts his habeas corpus claims in state court, he has the right to seek
federal habeas corpus relief if his request is denied.18 Assuming he pursues
state and federal habeas review of his conviction and sentence, his
postconviction procedures will take at least another eight and a half years,
excluding the time for the petitions for writs of certiorari before the United
States Supreme Court. Should Mr. Ramirez’s attempts to overturn his
judgment of death prove unsuccessful, he will spend approximately twentyfive years on death row before he is executed,19 assuming the absence of
any legislative change in the present procedures.
In another capital case, Clarence Ray Allen was charged with the
murder of three people on September 5, 1980. He was sentenced to death
on December 2, 1982.20 He was executed on January 17, 2006, more than
twenty-five years after committing his crimes. The lengthy delays
12.75 years, August 8, 2002: After three requests for an extension of time, the California Attorney
General’s Office filed a 338-page responsive brief.
14.1 years, December 31, 2003: After eight requests for an extension of time, Mr. Ramirez’s counsel
filed a 171-page reply brief.
16.5 years, June 6, 2006: Mr. Ramirez’s direct appeal was argued and submitted.
16.6 years, August 7, 2006: The California Supreme Court affirmed Mr. Ramirez’s conviction and
sentence.
On June 21, 2004, Mr. Ramirez filed a related habeas corpus petition in the California Supreme Court.
Docket, People v. Ramirez, No. S125755 (Cal. June 21, 2004), available at http://appellate
cases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr. Ramirez’s direct
appeal:
14.6 years, June 21, 2004: Mr. Ramirez filed a habeas corpus petition in the California Supreme Court.
15 years, November 22, 2004: After four requests for an extension of time, the attorney general filed an
informal response.
16 years, November 30, 2005: After eleven requests for an extension of time, Mr. Ramirez’s counsel
filed a reply to the informal response.
16.7 years, as of July 24, 2006: The California Supreme Court had taken no further action on Mr.
Ramirez’s request for habeas corpus relief.
16. See Docket, supra note 15.
17. See Docket, supra note 15.
18. 28 U.S.C. § 2254(a) (2000).
19. See Docket Database, supra note 14.
20. See Cal. Dep’t of Corrs. & Rehab., Inmates Executed, 1978 to Present, at
http://www.cdc.state.ca.us/ReportsResearch/InmatesExecuted.html (last visited May 10, 2007)
[hereinafter Inmates Executed List].

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experienced by Mr. Allen in his pursuit of appellate and habeas relief are
not uncommon among inmates on California’s death row and illustrate the
sad state of the current review procedures.
The California Supreme Court affirmed Mr. Allen’s judgment of
conviction and death sentence in a published opinion on December 31,
1986, four years after the entry of the judgment of conviction.21 The United
States Supreme Court denied Mr. Allen’s petition for certiorari on October
5, 1987. (At that time there were fifty-eight prisoners on San Quentin’s
death row.)22
On December 10, 1987, the California Supreme Court appointed new
counsel to represent Mr. Allen in his state habeas corpus proceedings.23 Mr.
21. Docket, People v. Allen, No. S004483 (Cal. Nov. 22, 1982), available at
http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr.
Allen’s direct appeal process:
November 22, 1982: Judgment of Death Entered.
1 month, December 31, 1982: The California Supreme Court appointed counsel for Mr. Allen’s
automatic direct appeal.
1.6 years, July 6, 1984: The record of the trial was filed. A delay was caused by four requests by the
court reporter for an extension of time to prepare the trial transcripts, and two requests by Mr. Allen’s
appellate counsel for an extension of time to correct the record on appeal.
2 years, December 19, 1984: Mr. Allen’s appellate counsel filed the opening brief.
2.2 years, February 19, 1985: The Attorney General’s Office filed its responsive brief.
2.3 years, April 15, 1985: Mr. Allen’s counsel filed the reply brief and a supplemental brief.
2.7 years, August 9, 1985: The State filed a response to the supplemental brief.
3.1 years, January 7, 1986: Mr. Allen’s automatic appeal was argued before the Supreme Court.
4 years, December 31, 1986: The Supreme Court affirmed the judgment of conviction and the death
sentence in a published opinion.
4.8 years, October 5, 1987: The United States Supreme Court denied Mr. Allen’s petition for certiorari.
See Allen v. California, 484 U.S. 872 (1987).
22. Status of Automatic Appeals filed in the Supreme Court (Nov. 22, 2005) (on file with
author).
23. Docket, People v. Allen, No. S003571 (Cal. Dec. 22, 1987), available at
http://appellatecases.courtinfo.ca.gov/. The docket reflects the following timeline concerning Mr.
Allen’s first state habeas proceeding:
5 years, December 10, 1987: The California Supreme Court appointed new counsel to represent Mr.
Allen in state habeas corpus proceedings.
5 years, December 22, 1987: Mr. Allen’s counsel filed a petition for habeas corpus relief.
5 years, December 31, 1987: The Supreme Court directed the Attorney General’s Office to file an
informal response.
5.1 years, January 19, 1988: The State filed its informal response.
5.2 years, February 11, 1988: Mr. Allen’s counsel filed a reply.
5.3 years, March 31, 1988: Mr. Allen’s counsel filed an amended habeas corpus petition.
5.3 years, April 29, 1988: The State filed an opposition to the amended petition for a writ of habeas
corpus.
5.4 years, May 20, 1988: Mr. Allen’s counsel replied to the opposition.
5.5 years, June 23, 1988: The California Supreme Court denied a hearing on the merits.

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Allen’s counsel filed a petition for habeas corpus relief on December 22,
1987.24 The California Supreme Court denied a hearing on the merits on
June 23, 1988.25 His execution was scheduled for September 9, 1988.26 The
United States Supreme Court denied Mr. Allen’s petition for a writ of
certiorari challenging the California Supreme Court’s denial of his petition
for a writ of habeas corpus and his request for a stay of execution on
September 19, 1988.27
Mr. Allen’s state habeas corpus counsel filed an application for a
federal writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 31,
1988, in the District Court for the Eastern District of California.28 That
5.8 years, September 9, 1988: Mr. Allen’s execution was scheduled for this date. The California
Supreme Court denied a stay of execution on August 10, 1988.
24. See Docket, supra note 23.
25. See Docket, supra note 23.
26. See Docket, supra note 23.
27. Allen v. California, 487 U.S. 1264 (1988).
28. Docket, Allen v. Vasquez, No. 2:88-cv-01123-FCD-JFM (E.D. Cal. Aug. 31, 1988),
available at https://www.ecf.caed.uscourts.gov; Docket, Allen v. Woodford, No. 01-9901 (9th Cir. July
6, 2001) (on file with author). The dockets reflect the following timeline concerning Mr. Allen’s federal
habeas proceeding:
5.7 years, August 31, 1988: Mr. Allen’s state habeas corpus counsel filed an application for a federal
writ of habeas corpus application pursuant to 28 U.S.C. § 2254.
5.8 years, October 7, 1988: The State filed its answer.
6 years, December 29, 1988: The State filed a supplemental answer.
8.8 years, October 31, 1991: Mr. Allen’s counsel filed an amended application.
10 years, December 14, 1992: The district court stayed the proceedings and ordered Mr. Allen to
exhaust certain claims in state court.
10.5 years, June 29, 1993: The district court lifted the stay in Mr. Allen’s federal habeas case. The
district court ordered that Mr. Allen’s counsel be permitted to conduct discovery.
11 years, January 21, 1994: The state filed a motion to dismiss Mr. Allen’s alleged procedurally
defaulted claims.
11.3 years, April 18, 1994: Mr. Allen’s counsel filed his traverse to the State’s answer.
11.8 years, September 30, 1994: The district court denied the State’s motion to dismiss Mr. Allen’s
claims.
14.3 years, April 14, 1997: An evidentiary hearing was held in the district court between April 14, 1997
and April 21, 1997.
18.4 years, May 11, 2001: Mr. Allen’s application for federal habeas corpus relief was denied twelve
years and nine months after it was filed and over nineteen years after he was convicted and sentenced to
death.
18.5 years, June 8, 2001: Mr. Allen’s counsel filed a notice of appeal in the United States Court of
Appeals for the Ninth Circuit.
19.5 years, June 21, 2002: Mr. Allen’s opening brief was filed.
20 years, December 4, 2002: The State’s responsive brief was filed.
20.3 years, April 21, 2003: Mr. Allen’s reply brief was filed.
20.5 years, June 12, 2003: The matter was argued and submitted for a decision before a three-judge
panel of the Ninth Circuit.
21.4 years, May 6, 2004: The three-judge panel affirmed the district court’s denial of Mr. Allen’s
application for federal habeas corpus relief.

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court granted a stay of execution on the same date.29 The district court
stayed the proceedings and ordered Mr. Allen to exhaust certain claims in
state court.30 Mr. Allen’s application for habeas corpus relief was denied by
the district court on May 11, 2001,31 twelve years and nine months after it
was filed and more than eighteen years after he was convicted and
sentenced to death. Subsequent appeals to the United States Court of
Appeals for the Ninth Circuit and the United States Supreme Court were
denied.32
On December 23, 2005, Mr. Allen filed a third petition for habeas
corpus relief in the California Supreme Court.33 The California Supreme
Court denied this petition for habeas corpus relief and his request for a stay
of execution on January 10, 2006.34 The United States Supreme Court
denied Mr. Allen’s petition for a writ of certiorari on January 16, 2006.35
Meanwhile, on January 12, 2006, Mr. Allen’s counsel filed a second
application for habeas corpus relief in the United States District Court for
the Eastern District of California.36 In this application, Mr. Allen alleged
that he was seventy-six years old and suffering from blindness, hearing
loss, advanced diabetes, heart disease, complications from a stroke, and
complications from a heart attack that left him in a wheelchair.37 He argued
that his execution after his long stay on San Quentin’s death row would be
cruel and unusual punishment in violation of the Eighth Amendment.38 The
22 years, January 24, 2005: His petition for panel rehearing was denied and his petition for rehearing en
banc was rejected more than three years after the appeal was filed in the Ninth Circuit.
22.8 years, October 11, 2005: The United States Supreme Court denied Mr. Allen’s petition for a writ
of certiorari. Mr. Allen’s execution was scheduled for January 17, 2006 by the trial court.
29. See Docket, supra note 28.
30. Docket, People v. Allen, No. S031165 (Cal. Feb. 10, 1993), available at
http://appellatecases.courtinfo.ca.gov/. Mr. Allen’s counsel filed a second state habeas corpus petition
in the California Supreme Court on February 10, 1993. The State filed an informal response on March
18, 1993. Mr. Allen’s counsel filed his reply on April 26, 1993. The California Supreme Court denied
the second habeas corpus petition on the merits on June 2, 1993. Id.
31. See Docket, supra note 28.
32. See Docket, supra note 28.
33. Docket, People v. Allen, No. S139857 (Cal. Dec. 23, 2005), available at
http://appellatecases.courtinfo.ca.gov/. The docket reflects that on December 27, 2005, the California
Supreme Court requested that the California Attorney General file an informal response. On January 3,
2006, the State filed its informal response. Mr. Allen filed a reply on January 6, 2006. Id.
34. See id.
35. See id.
36. Docket, Allen v. Ornoski, No. 2:06-cv-00064-FCD-DAD (E.D. Cal. Jan. 12, 2006), available
at https://www.ecf.caed.uscourts.gov.
37. See Allen v. Ornoski, 435 F.3d 946, 950 n.6 (9th Cir. 2006), cert. denied, 126 S. Ct. 1140
(2006).
38. See Docket at No. 13, Allen v. Ornoski, supra note 36.

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district court denied his application the same day it was filed.39 He filed a
notice of appeal to the United States Court of Appeals for the Ninth Circuit
on January 13, 2006.40 He also requested a certificate of appealability and a
stay of execution.41 Both requests were denied on January 15, 2006.42 The
United States Supreme Court denied Mr. Allen’s petition for certiorari on
January 16, 2006.43 He was executed the following day.44
The extraordinary delays in processing the Ramirez and Allen cases
through the judicial system are not atypical.45 Neither case involved
39. See id.
40. See Docket, Allen v. Ornoski, No. 06-99001 (9th Cir. Jan. 13, 2006), available at
http://www.pacer.ca9.uscourts.gov.
41. See id.
42. See id.
43. See id.
44. Inmates Executed List, supra note 20.
45. Several recent rulings illustrate this point well. For example, on November 13, 2006, the
United States Supreme Court issued a ruling in the case of Fernando Belmontes after he had been on
California’s death row for twenty-four years. See Ayers v. Belmontes, 127 S. Ct. 469 (2006). He was
convicted in 1982 of first degree murder and sentenced to death. See id. at 472. Following the
affirmance of his conviction and sentence on automatic appeal in 1988, Mr. Belmontes filed successive
petitions in state and federal district court for a writ of habeas corpus. The California Supreme Court
denied his state petition in 1992, and the federal district court denied his section 2254 application in
2001. Docket, Belmontes v. Superior Court, No. S012093 (Cal. Sept. 18, 1989), available at
http://appellatecases.courtinfo.ca.gov/; Docket, Belmontes v. Vasquez, No. 2:89-CV-00736-DFL-JFM
(E.D. Cal. May 25, 1989), available at https://ecf.cald.uscourts.gov. Mr. Belmontes appealed to the
United States Court of Appeals for the Ninth Circuit. Docket, Belmontes v. Woodford, No. 01-99018
(9th Cir. Oct. 17, 2001). In 2003, it reversed the district court’s decision invalidating Mr. Belmontes’s
sentence, twenty-one years after it had been imposed. Id. The United States Supreme Court granted
certiorari on March 28, 2005. Id. It reversed and remanded the Ninth Circuit’s decision. Id. Upon
remand, the Ninth Circuit again invalidated Mr. Belmontes’s sentence. Id. The United States Supreme
Court again granted certiorari on May 1, 2006. Ornaski v. Belmontes, 126 S. Ct. 1909 (2006). On
November 13, 2006, it reversed the Ninth Circuit’s decision, and again remanded for further
consideration. Ayers v. Belmontes, 127 S. Ct. 469 (2006).
On August 14, 2006, the California Supreme Court issued its opinion in the automatic appeal of
Walter Joseph Cook, III. People v. Cook, 139 P.3d 492 (Cal. 2006). Mr. Cook was convicted of
committing three murders in 1992. Id. at 500–02. He was sentenced to death in 1994. Docket, People v.
Cook, No. S042223 (Cal. Sept. 2, 1994), available at http://appellatecases.courtinfo.ca.gov/. There was
a twelve-year delay since the judgment of death and the California Supreme Court’s ruling on his
automatic appeal.
On August 21, 2006, the California Supreme Court issued its opinion in the automatic appeal of
David Keith Rogers. People v. Rogers, 141 P.3d 135 (Cal. 2006). Mr. Rogers was convicted of two
murders committed in 1987. Id. at 144. He was sentenced to death in 1988. Docket, People v. Rogers,
No. S005502 (Cal. May 2, 1988), available at http://appellatecases.courtinfo.ca.gov/. Thus, there was
an eighteen-year delay between the judgment of death and the California Supreme Court’s ruling on his
automatic appeal.
On August 24, 2006, the California Supreme Court issued its opinion in the automatic appeal of
Albert Lewis. People v. Lewis, 140 P.3d 775 (Cal. 2006). Mr. Lewis was convicted of two counts of
first degree murder and attempted murder of a third victim in 1989, and was sentenced to death in 1993.

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anomalous events—such as vacated convictions or sentences followed by
successive trials that create lengthy delays—beyond those inherent in the
system.46 These representative cases expose the procedural hurdles to a
speedy determination of whether the judgment of death should be vacated
or executed. These hurdles include the following events:
(1) Delay in the preparation of the reporter’s transcripts of the trial court
proceedings.
(2) Delay in the appointment of appellate counsel for the automatic
appeal to the California Supreme Court.
(3) Delay in the certification of the record following the appointment of
appellate counsel.
(4) Delay by appointed appellate counsel in filing an opening brief.
(5) Delay by the Attorney General’s Office in filing its responsive brief.
(6) Delay in the filing of the condemned prisoner’s reply brief.
(7) Delay in scheduling the matter for oral argument before the
California Supreme Court.
(8) Delay in the filing of decisions by the California Supreme Court on
the automatic appeal, vacating or affirming the trial court’s judgment.
(The average delay between 1978 and January 19, 2006, was 6.2 months.
Since January 1, 1989, the California Supreme Court has filed its
decisions in death penalty matters within ninety days of oral argument.)
(9) Delay by the United States Supreme Court in the issuance of its
ruling in the condemned prisoner’s petition for a writ of certiorari.
(10) Delay in the appointment of state habeas counsel.
(11) Delay in the issuance of an order granting or denying the state
petition for a writ of habeas corpus.
See id. at 843. Thus, there was a thirteen-year delay between the judgment of death and the California
Supreme Court’s ruling on his automatic appeal.
46. This point is well illustrated by the California Supreme Court’s recently issued opinion in the
second automatic appeal of Fermin Rodriguez Ledesma, twenty-eight years after the commission of his
crimes. See People v. Ledesma, 140 P.3d 657 (Cal. 2006). Mr. Ledesma was charged with the 1978
murder of Gabriel Flores and was convicted and sentenced to death in 1980. Id. at 672. On the
automatic appeal, the California Supreme Court vacated Mr. Ledesma’s judgment of death and
remanded the case to the superior court. People v. Ledesma, 729 P.2d 839 (Cal. 1987). On February 7,
1990, following a second trial, Mr. Ledesma was again found guilty on all charges and sentenced to
death. Docket, People v. Ledesma, No. S014394 (Cal. Feb. 7, 1990), available at http://appellate
cases.courtinfo.ca.gov/. Sixteen years later, on August 17, 2006, the California Supreme Court issued
its opinion in his automatic appeal affirming his second judgment of death. Id. See also James S.
Liebman, Opting for Real Death Penalty Reform, 63 OHIO ST. L.J. 315, 315–16 (2002) (arguing that
delays during appeal and postconviction procedures are caused by mistakes at the trial level).

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(12) Delay by the United States Supreme Court in granting or denying a
petition for a writ of certiorari challenging the denial of the state habeas
corpus petition.
(13) Delay in the appointment of counsel for a death row inmate’s
application for a federal writ of habeas corpus.
(14) Delay in the filing of an application for a writ of habeas corpus by
appointed or retained counsel in the federal district court.
(15) Delay in the determination by a federal district court of whether the
application for a writ of habeas corpus contains claims that were not
exhausted before the California Supreme Court.
(16) Delay resulting from the stay and abeyance of an applicant’s
exhausted claims while the condemned prisoner presents unexhausted
claims to the California Supreme Court.
(17) Delay in the resolution of the fully exhausted federal constitutional
claims by a federal district court.
(18) Delay in resolving the condemned prisoner’s appeal to the United
States Court of Appeals from the denial or dismissal of the application
for a federal writ of habeas corpus.
(19) Delay in the resolution by the United States Supreme Court of a
condemned prisoner’s petition for a writ of certiorari challenging the
Ninth Circuit’s affirmance of the district court’s denial or dismissal of an
application for a federal writ of habeas corpus.
(20) Delay in the resolution of a condemned prisoner’s application for a
second or successive petition for federal habeas corpus relief.

These delays in the present procedures under California and federal
law have resulted in the imprisonment of death row inmates awaiting
resolution of their requests for a reversal of their judgments of death for an
inhumane—if not a cruel and unusual—period of time. While the average
delay is currently 17.2 years, this figure is deceptive when you consider
that, of the 66247 prisoners currently on death row:
Thirty persons have been on California’s death row more than twentyfive years.48
One hundred and nineteen persons have been on death row more than
twenty years.49
47. Docket Database, supra note 14. See also Cal. Dep’t of Corrs. & Rehab., Condemned Inmate
Summary List (Dec. 13, 2005), http://www.cdc.state.ca.us/ReportsResearch/docs/Summary.pdf.
48. Cal. Dep’t of Corrs. & Rehab., supra note 47.
49. Id.

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Two hundred and forty persons have been on death row more than
fifteen years.50
Four hundred and eight persons have been on death row more than ten
years.51
Five hundred and seventy-five persons have been on death row more
than five years.52

III. WHY THE COURTS, THE LEGISLATURE, AND THE PEOPLE
SHOULD BE CONCERNED ABOUT DELAYS
Not everyone is troubled by lengthy delays. In fact, some argue that
delays are an inevitable part of the death penalty process. Justice Thomas
has commented that “[c]onsistency would seem to demand that those who
accept our death penalty jurisprudence as a given also accept the lengthy
delay between sentencing and execution as a necessary consequence.”53
That is, seeing delays simply as a natural outgrowth of the “arsenal of
‘constitutional’ claims” with which capital defendants are armed, Justice
Thomas said that “executions are inevitably delayed.”54
The extraordinary delays experienced by California’s death row
inmates, however, are unacceptable for several important reasons. First,
prisoners who have had convictions set aside because of reversible trial
court errors or who have meritorious habeas claims are spending decades
on death row before their appeals or postconviction claims for relief are
heard and their judgments or sentences are vacated. In cases where the
judgment of guilt and/or sentence were vacated between 1978 and 1986,
the average delay was 3.6 years.55 During this time period, it was only on
automatic appeal that each death row inmate’s judgment of guilt or
sentence was vacated.56 In cases where the judgment of guilt and/or the
sentence were vacated between 1987 and 2005, the average delay was 11
years.57 During this time period, for those inmates whose judgments of
guilt and/or sentences were vacated by the California Supreme Court on
automatic appeal, the average delay was 7.6 years.58 For those inmates
50. Id.
51. Id.
52. Id.
53. Knight v. Florida, 528 U.S. 990, 992 (1999) (Thomas, J., concurring in denial of certiorari).
54. Id.
55. Docket Database, supra note 14. This figure is based on an examination of the dockets of
persons whose judgments of guilt or sentences were vacated and who were not retried or resentenced.
56. Id.
57. Id.
58. Id.

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whose judgments of guilt and/or sentences were vacated by the California
Supreme Court on a state petition for habeas corpus, the average delay was
11.4 years.59 For those inmates whose sentences were vacated by a federal
court upon an application for habeas corpus, the average delay was 16.75
years.60 These delays undermine one of the very purposes of a review of a
judgment of death, which is to uncover mistakes made at trial as efficiently
and expeditiously as possible in order to protect the prisoner’s right to a fair
trial.61
Inordinate delays also undermine the stated purposes of having the
death penalty, namely retribution and deterrence.62 Some legal
commentators have concluded that long delays diminish the deterrent value
of the death penalty.63 As for retribution, Justice Stevens suggested in
Lackey v. Texas that the retributive purpose of the death penalty is fulfilled
after a long period of imprisonment while waiting for a final disposition.64
Additionally, the costs to California taxpayers of trying death penalty
cases and carrying out a death sentence are enormous. One oft-cited
statistic, derived from a 1988 study conducted by the Sacramento Bee, is
that the death penalty costs California $90 million per year beyond the
ordinary costs of the justice system.65 The Sacramento Bee study estimated
59. Id.
60. Id.
61. See Liebman, supra note 46, at 315 (contending that the “appellate system is forced to deal
with large amounts of error, creating backlog and delays”).
62. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (Stewart, Powell & Stevens, JJ.) (concluding
that the death penalty serves two principle social purposes: retribution and deterrence).
63. Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital
Punishment, 33 J. LEGAL STUD. 283 (2004) (stating that delays decrease the deterrence factor). See also
Justice Lewis F. Powell, Jr., Capital Punishment, 102 HARV. L. REV. 1035, 1035 (1989) (“This delay
undermines the deterrent effect of capital punishment and reduces public confidence in the criminal
justice system.”).
64. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari)
(stating that “after such an extended time, the acceptable state interest in retribution has arguably been
satisfied by the severe punishment already inflicted”).
65. See, e.g., Stephen Magagnini, Closing Death Row Would Save State $90 Million a Year,
SACRAMENTO BEE, Mar. 28, 1988, at A1 (original study); Kozinski & Gallagher, supra note 3, at 13
(citing the $90 million figure); Ashley Rupp, Note, Death Penalty Prosecutorial Charging Decisions
and County Budgetary Restrictions: Is the Death Penalty Arbitrarily Applied Based on County
Funding?, 71 FORDHAM L. REV. 2735, 2755 (2003) (same); Barbara L. Jones, Some in Minnesota’s
Legal Community Express Concern About Re-introducing the Death Penalty, MINN. LAW., Dec. 15,
2003, available at 2003 WLNR 5603758 (same); Editorial, Slow Ride to Death Chamber, L.A. TIMES,
Dec. 15, 2004, at B12 (same); Death Penalty Focus of Cal., The Cost of the Death Penalty in California,
at http://worldpolicy.org/globalrights/dp/dp-cost.html (last visited May 10, 2007) (same); RICHARD C.
DIETER, MILLIONS MISSPENT: WHAT POLITICIANS DON’T SAY ABOUT THE HIGH COSTS OF THE DEATH
PENALTY (1994), at http://www.deathpenaltyinfo.org/article.php?scid=45&did=385 (same).

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that $78 million of that figure was incurred at the trial level.66 Moreover,
the postconviction costs were also substantial. The study estimated that the
costs incurred by the state of California for prosecuting automatic appeals
was $1.8 million per year.67 In addition, the cost of counsel appointed to
represent death row inmates on appeal was $7.6 million per year.68 It costs
an average of $124,150 per year to house a death row inmate.69 This
amount is $90,000 more per year than the cost of housing an inmate in the
general population70 and almost four times the annual undergraduate tuition
of $31,200 at Stanford University.71 On housing alone, California spends
$57.5 million more per year on condemned prisoners than on the general
prison population.72
Additional expenses are also incurred with regard to habeas corpus
petitions brought by condemned prisoners in federal court. “Federal habeas
corpus appeals in death cases are so expensive that the [Ninth] Circuit
assigns a U.S. district judge just to review” the amount requested by
counsel who represents a habeas corpus applicant and investigates the
applicant’s claims.73 The amount requested is not made public.74
66. Magagnini, supra note 65. See also Ilyana Kuziemko, Does the Threat of the Death Penalty
Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital
Punishment, 8 AM. L. & ECON. REV. 116, 117 (2006) (noting that in California, a capital trial alone,
excluding subsequent appeals, costs from $200,000 to $1.5 million).
67. See Magagnini, supra note 65.
68. See id. Since 1988, the postconviction costs have risen substantially. See Patrick Hoge,
Death-penalty Cases Involve Long, Laborious, Costly Process, SACRAMENTO BEE, Feb. 25, 1996, at
A1. In 1988, there were only 249 death penalty appeals pending. See id. Now, there are 662. See Cal.
Dep’t of Corrs. & Rehab., supra note 47 (stating that the number of prisoners on California’s death row
as of January 29, 2007, is 662). As of 2005, the California Supreme Court spent “$11.8 million annually
for court-appointed defense counsel.” Rone Tempest, Death Row Often Means a Long Life; California
Condemns Many Murderers, but Few Are Ever Executed, L.A. TIMES, Mar. 6, 2005, at B1. California
Attorney General Bill Lockyer’s office spends $11 million annually in representing the state in death
penalty appeals. See id.
69. See Tempest, supra note 68 (citing California Department of Corrections Spokesperson
Margot Boch) (stating that the cost of housing a condemned prisoner is $90,000 more than the cost of
housing a prisoner in the general population); Death Penalty Info. Ctr., Death Penalty in California Is
Very Costly, at http://www.deathpenaltyinfo.org/article.php?did=2058 (last visited May 10, 2007)
(stating that the average cost of housing a prisoner who is neither on death row nor serving a sentence
of life-without-parole is $34,150).
70. See Tempest, supra note 68.
71. See Stanford Fin. Aid Office, Stanford Undergraduate Student Budget, at
http://www.stanford.edu/dept/finaid/current/2_a_cost.html (last visited May 10, 2007).
72. See Tempest, supra note 68.
73. See id.
74. From November 23, 1992, until October 1, 1998, I served on the Committee on Defender
Services of the Judicial Conference of the United States. During that time, I was privy to budgetary
requests. In multiple cases, federal habeas corpus counsel’s expenses exceeded $500,000. In at least one
case, the expense claim exceeded $1 million.

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Since the death penalty was reinstated in California in 1978, thirteen
prisoners have been executed.75 During the same time period, fifty death
row inmates died because of natural causes, suicide, or other inmates’
violence in the exercise yard.76 The practical effect of the delays in the
appellate process, thus, is to convert the vast majority of death sentences to
sentences of life without parole. As illustrated in Figure 1 below, the
backlog in processing death row appeals is now so severe that California
would have to execute five prisoners per month for the next ten years just
to carry out the sentences of those currently on death row.77
Extraordinary delays are indeed unacceptable. The United States
Supreme Court may one day grant certiorari to determine whether such
delays violate the Eighth Amendment’s prohibition against cruel and
unusual punishment. But they are not “inevitable,” as suggested by Justice
Thomas,78 if the California Legislature will take action to change the
present dysfunctional procedures. This Article addresses seriatim the delays
inherent in the multiple stages of the appellate and postconviction relief
process. Part IV sets forth the results of a statistical analysis of the delays
that have occurred in disposing of the automatic appeals and presents
recommendations for providing swifter justice. The parts that follow
address the delay inherent in state and federal habeas procedures and
propose implementing changes to reduce it.

75. Inmates Executed List, supra note 20.
Robert Harris, Received: 03/06/1979, Executed: 04/21/1992, 13 years on death row.
David Mason, Received: 01/27/1984, Executed: 08/24/1993, 9 years on death row.
William Bonin, Received: 03/22/1982, Executed: 02/23/1996, 13 years on death row.
Keith Williams, Received: 04/13/1979, Executed: 05/31/1996, 17 years on death row.
Thomas Thompson, Received: 08/17/1984, Executed: 07/14/1998, 14 years on death row.
Jaturun Siripongs, Received: 05/02/1983, Executed: 02/09/1999, 15 years on death row.
Manuel Babbit, Received: 07/15/1982, Executed: 05/04/1999, 16 years on death row.
Darrell Rich, Received: 01/23/1981, Executed: 03/15/2000, 19 years on death row.
Robert Massie, Received: 05/28/1979, Executed: 03/27/2001, 21 years on death row.
Stephen Anderson, Received: 07/30/1981, Executed: 01/29/2002, 20 years on death row.
Donald Beardslee, Received: 03/14/1984, Executed: 01/19/2005, 20 years on death row.
Stanley Williams, Received: 04/20/1981, Executed: 12/13/2005, 24 years on death row.
Clarence Allen, Received: 12/02/1982, Executed: 01/17/2006, 23 years on death row.
76. See Cal. Dep’t of Corrs. & Rehab., Condemned Inmates Who Have Died Since 1978, at
http://www.cdc.state.ca.us/ReportsResearch/docs/CIWHD.pdf (last visited May 10, 2007). See also
Kuziemko, supra note 66, at 117 (“Capital trials rarely reduce prison costs, as less than 10% of those
sentenced to death are executed.”).
77. This figure is based on the 646 prisoners on death row as of the creation of the Docket
Database, supra note 14.
78. See Knight v. Florida, 528 U.S. 990, 992 (1999) (Thomas, J., concurring in denial of
certiorari).

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FIGURE 1: Judgments of death rendered v. Executions carried out in
California 1978–2005

Total judgments of death rendered
Total executions
IV. DELAYS INHERENT IN THE AUTOMATIC APPEALS PROCESS
One of the lengthiest delays in the administration of death sentences
occurs during the automatic appeal. The California Supreme Court has had
exclusive jurisdiction over direct appeals from judgments of death since
California became a state in 1850.79 When the California Constitution was
adopted, the Supreme Court had jurisdiction over all appealable civil and
criminal judgments,80 because the California Courts of Appeal were not
created until 1904.81
The 1849 California Constitution provided for a Supreme Court with
only three members.82 In its June term in 1850, the original California
79. CAL. CONST. of 1849, art. VI, § 4 (conferring jurisdiction over the California Supreme Court
to hear “all criminal cases amounting to felony, on questions of law alone”).
80. Id. (“The Supreme Court shall have appellate jurisdiction in all cases . . . .”).
81. 1903 Cal. Stat. 738 (creating the California Courts of Appeal effective in 1904).
82. CAL. CONST. of 1849, art. VI, § 2 (“The supreme court shall consist of a chief justice and two
associate justices, any two of whom shall constitute a quorum.”).

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Supreme Court published its first opinion in a death penalty case.83 Mr.
Daniels was indicted for the crime of murder on August 30, 1849.84 The
judgment of death was reversed on jurisdictional grounds by the California
Supreme Court a mere ten months later.85
The size of the court was increased to five members in 1862.86 In May
of 1879, California voters adopted a new Constitution87 that provided for a
Supreme Court consisting of a chief justice and six associate justices.88 It
also required that all opinions be in writing.89 By 1882, the newly expanded
Supreme Court developed a backlog of pending cases. The average time
that a case was pending before the Supreme Court was two years.90 In
1885, the California Legislature authorized the appointment of three
commissioners to help reduce the backlog.91 Two additional commissioners
were authorized in 1889.92
In 1904, the California Legislature created three Courts of Appeal and
eliminated the position of Supreme Court commissioner.93 The Courts of
Appeal were given jurisdiction over civil and criminal matters except for
83. People v. Daniels, 1 Cal. 106 (1850).
84. See id. at 107.
85. See id.
86. CAL. CONST. of 1849, art. VI, § 2 (as amended 1862). See also JOSEPH R. GRODIN, CALVIN
R. MASSEY & RICHARD B. CUNNINGHAM, THE CALIFORNIA STATE CONSTITUTION: A REFERENCE
GUIDE 118 (1993) (describing the 1862 amendment).
87. CAL. CONST. of 1879. See also GRODIN ET AL., supra note 86, at 118 (describing the 1879
amendments).
88. CAL. CONST. of 1879, art. VI, § 2.
89. Id. (“In the determination of causes, all decisions of the court in bank or in departments shall
be given in writing, and the grounds of the decision shall be stated.”).
90. See Cal. Supreme Court Historical Soc’y, History of the California Supreme Court, at
http://www.cschs.org/02_history/02_a.html (last visited May 9, 2007).
91. See id.
92. See id.
93. See 1903 Cal. Stat. 738 (amending article VI, section 4 of the California Constitution). The
amended section 4 provided: “The state is hereby divided into three appellate districts, in each of which
there shall be a district court of appeal consisting of three justices.” Id.

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death penalty appeals.94 The Supreme Court retained its exclusive
jurisdiction over appeals in death penalty cases.95
Since 1904, the number of Courts of Appeal has been increased
periodically.96 Currently there are six separate Courts of Appeal districts in
California,97 in which a total of 105 associate justices sit.98 The size of the
California Supreme Court, however, has remained at seven justices since
1879.
While the California Supreme Court has always had exclusive
jurisdiction over an appeal from a judgment of death, such appeals have not
always been automatic. Prior to 1935, an appellant in a capital case had to
comply with the requirements of section 1240 of the California Penal Code
for the filing and service of a notice of appeal in order “to confer upon . . .
[the Supreme Court] jurisdiction to hear and determine the appeal.”99 In
1935, however, Rush Griffin was executed before the California Supreme
Court heard his appeal from his death sentence.100 His attorney had filed a
notice of appeal in the trial court, but the clerk of the superior court did not
inform the clerk of the Supreme Court that Mr. Griffin had appealed.
Moreover, the clerk’s transcript of the trial proceedings was not forwarded
to the Supreme Court until three days after Mr. Griffin’s execution.101 At
that time, it was customary for the clerk of the Supreme Court to notify the
warden that an appeal was pending.102 The warden was not notified
94. The new provision provided that the Courts of Appeal had jurisdiction
in all cases at law in which the demand, exclusive of interest, or the value of the property in
controversy, amounts to three hundred dollars, and does not amount to two thousand dollars;
also, in all cases of forcible and unlawful entry and detainer . . . , in proceedings in
insolvency, and in actions to prevent or abate a nuisance; in proceedings of mandamus,
certiorari, and prohibition, usurpation of office, contesting elections and eminent domain, and
in such other special proceedings as may be provided by law (excepting cases in which
appellate jurisdiction is given to the supreme court); also, on questions of law alone, in all
criminal cases prosecuted by indictment or information in a court of record, excepting
criminal cases where judgment of death has been rendered.
Id. at 739.
95. Id. at 738.
96. See GRODIN ET AL., supra note 86, at 119.
97. See id.
98. California Courts of Appeal, Centennial Celebration, at http://www.courtinfo.ca.gov/
courts/courtsofappeal (last visited May 10, 2007).
99. People v. Brown, 84 P. 204, 205 (Cal. 1906) (“Section 1240 of the Penal Code provides that
in a criminal case ‘appeal is taken by filing with the clerk of the court in which the judgment or order
appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof
upon the attorney of the adverse party.’”). The current version of section 1240 of the California Penal
Code is unrelated to taking appeals. Instead, it relates to the appointment of the state public defender to
represent indigent defendants. See CAL. PENAL CODE § 1240 (West 2004).
100. See People v. Massie, 967 P.2d 29, 40 (Cal. 1998).
101. See id.
102. See id.

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because the clerk of the Supreme Court was unaware that Mr. Griffin had
filed a notice of appeal.103
The California Legislature created a special committee to investigate
the execution of Mr. Griffin.104 This committee recommended that
legislation be enacted providing for an automatic appeal in all cases where
the trial court ordered a sentence of death.105 As a result, section 1239 was
amended to provide that “[w]hen . . . a judgment of death is rendered, an
appeal is automatically taken by the defendant.”106
The right to an automatic appeal “imposes a duty upon [the] court ‘to
make an examination of the complete record of the proceedings had in the
trial court, to the end that it be ascertained whether defendant was given a
fair trial.’”107 The court “cannot avoid or abdicate this duty merely because
defendant desires to waive the right provided for him.”108
The number of prisoners on death row has grown steadily over the
years,109 but the constitutional duty of the seven justices on the California
Supreme Court to consider every automatic appeal from a judgment of
death has not changed. The California Supreme Court now spends “about
20% of its time and resources on death penalty cases alone.”110 The result:
long delays at every stage of the automatic appeal process.
103. See id.
104. See id.
105. See id.
106. See CAL. PENAL CODE § 1239 (West 2004). Section 1239 provides, in part: “When upon any
plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any
action by him or her or his or her counsel.” The Legislature has reenacted section 1239, see 1982 Cal.
Stat. 3355, and has amended it, see 1988 Cal. Stat. 2013, but it has never altered the requirement that an
appeal is automatic when a defendant is sentenced to death.
107. People v. Stanworth, 457 P.2d 889, 898 (Cal. 1969) (quoting People v. Perry, 94 P.2d 559,
561 (Cal. 1939)).
108. Id. See also People v. Sheldon, 875 P.2d 83, 85 (Cal. 1994) (“[T]his appeal is automatic
(Pen. Code, § 1239, subd. (b)), and we have no authority to allow defendant to waive the appeal.”). In
Massie, the court noted that the Legislature had acquiesced in Stanworth’s holding that a condemned
defendant cannot waive his automatic appeal. See Massie, 967 P.2d at 40 (“‘When a statute has been
construed by the courts, and the Legislature thereafter reenacts that statute without changing the
interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and
acquiesced in, the courts’ construction of that statute.’” (quoting People v. Ledesma, 939 P.2d 1310,
1316 (Cal. 1997) (quoting People v. Bouzas, 807 P.2d 1076, 1081 (Cal. 1991)))).
109. An average of twenty-eight prisoners are sentenced to death each year. See JUDICIAL
COUNCIL OF CAL., 2006 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS, 1995–1996
THROUGH 2004–2005, at 4 (providing statistics from which the average can be calculated) [hereinafter
2006 STATISTICS REPORT].
110. See Tempest, supra note 68.

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A. DELAYS IN APPOINTING COUNSEL FOR THE AUTOMATIC APPEAL
One major source of delay in the automatic appeal process is the
appointment of counsel. Death row inmates are constitutionally entitled to
counsel for their automatic appeal;111 however, because counsel are
compensated well below market rates, the California Supreme Court has
encountered great difficulty in finding counsel who are willing to accept
appointment to represent such inmates.
1. Availability of Qualified Counsel
The California Rules of Court impose qualifications required of
appellate counsel for capital defendants. Specifically, every attorney must
demonstrate the “commitment, knowledge, and skills necessary to
competently represent the defendant.”112
There are two categories of attorneys eligible for appointment. First,
lead or associate counsel must have had an “[a]ctive practice of law in
California for at least four years.”113 The attorney must have either served
“as counsel of record for a defendant in seven completed felony appeals,
including one murder case” or “as counsel of record for a defendant in five
completed felony appeals and as supervised counsel for a defendant in two
death penalty appeals in which the opening brief has been filed.”114
Second, if an attorney has not practiced in California for four years or has
not served as counsel in the requisite number of criminal cases, an attorney
may be appointed if the attorney has substantially equivalent experience in
“another jurisdiction or different type of practice (such as civil trials or
appeals, academic work, or work for a court or prosecutor) for at least four
years.”115
All attorneys must be familiar with Supreme Court practices and
procedures, including those specific to death penalty appeals.116 Attorneys
must be proficient “in issue identification, research, analysis, writing, and
advocacy.”117 The Supreme Court may consider the following to determine
whether the attorney is so qualified: two writing samples; evaluations from
111. See Douglas v. California, 372 U.S. 353, 356 (1963) (holding that there is a right to counsel
on appeal); Powell v. Alabama, 287 U.S. 45, 68–69 (1932) (holding that defendants subject to the death
penalty are entitled to counsel).
112. CAL. R. CT. 8.605(b).
113. Id. at 8.605(d)(1).
114. Id. at 8.605(d)(2)(A)–(B).
115. Id. at 8.605(f)(1).
116. Id. at 8.605(d)(3).
117. Id. at 8.605(d)(5).

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assisting counsel if the attorney was previously appointed in a death
penalty appeal or postconviction proceeding; recommendations from two
other attorneys familiar with the attorney’s qualifications; and an
evaluation from the administrator responsible for appointing attorneys to
represent indigent defendants, if the attorney is involved in such a
program.118
2. Inadequate Compensation
Chief Justice Ronald George has commented that the delay in the
appointment of counsel is caused by the necessity of finding lawyers who
meet the qualifications set forth in the California Rules of Court.119 I
suggest that there is an even more compelling reason. The California
Legislature has failed to provide adequate funds to compensate appointed
counsel for the responsibility of representing clients who will die if their
attorney’s efforts are unsuccessful.120 The inadequate hourly compensation
surely must discourage lawyers who meet the four-year requirement in
criminal trials or appeals, or who have four years of equivalent experience
in civil trials or appeals, academic work, or work for a court or as a
prosecutor.
The hourly rate an appointed attorney in a capital case receives to
represent a death row inmate in an automatic appeal or in state
postconviction proceedings is $140.121 The issues presented in the
automatic appeal or state habeas corpus petitions in capital cases are
complex and constantly evolve based on the need to interpret the United
States Supreme Court’s most recent decisions (1) resolving challenges to
judgments of death based on alleged violations of the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments of the U.S. Constitution, and (2)
interpreting the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
118. Id.
119. Donna Domino, Linda Rapattoni & Peter Blumberg, George Cites Death-case Gains: Justice
Concedes Capital-appeals System is ‘Dysfunctional,’ L.A. DAILY J., Dec. 15, 2004, at 1.
120. Chief Justice George also acknowledges the lack of adequate compensation as a reason why
there is a shortage of lawyers. See Bob Egelko, Effort to Speed Executions Stalls in Senate; Provision
Unrelated to Security Had Been Added to Patriot Act, S.F. CHRON., Dec. 25, 2005, at B1 (quoting Chief
Justice George as saying, “If California wants to have a death penalty, California needs to provide a
level of funds where we can attract counsel.”).
121. See PAYMENT GUIDELINES FOR APPOINTED COUNSEL REPRESENTING INDIGENT CRIMINAL
APPELLANTS IN THE CALIFORNIA SUPREME COURT 13 (1993) (as amended 2006). Counsel representing
state capital defendants in federal habeas corpus proceedings receive $160 to $163 per hour. See COMM.
ON DEFENDER SERVS., JUDICIAL CONFERENCE OF THE U.S., REPORT 2 (2006). This too is woefully
inadequate.

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and Patriot Act.122 Competent appellate practitioners have the skills to
research the relevant jurisprudence and case law that must be considered in
resolving their clients’ challenges to the bases underlying a trial court’s
judgment of death.
By contrast, in 2005 and 2006, the average hourly rate awarded by
United States District Courts in California that use the Lodestar method
was $287 in civil cases.123 Paralegals in those same cases received an
122. See, e.g., Kansas v. Marsh, 126 S. Ct. 2516 (2006) (considering an Eighth Amendment
challenge to Kansas’s death penalty scheme); House v. Bell, 126 S. Ct. 2064 (2006) (considering the
applicability of AEDPA to a claim of actual innocence); Oregon v. Guzek, 546 U.S. 517 (2006)
(considering a Fourteenth and Eighth Amendment argument related to the presentation of alibi evidence
at a sentencing hearing); Brown v. Sanders, 546 U.S. 212 (2006) (considering a “constitutional”
challenge to a jury’s consideration of invalid “special circumstances” as aggravating evidence in favor
of the death penalty); Hill v. McDonough, 126 S. Ct. 2096 (2006) (considering the applicability of
AEDPA to an Eighth Amendment challenge to the method of execution brought pursuant to
42 U.S.C. § 1983).
123. In this section, three different approaches are used to determine what hourly rate civil
attorneys can expect to receive for work at levels comparable to appointed capital counsel. No state
court attorney’s fees figures are discussed because the only available published figures pertain to
federal court proceedings. A survey of twenty-eight cases from 2005 to 2006 in which attorneys fees
were awarded to attorneys in civil cases by the United States District Courts situated in California
revealed the average hourly rate for attorneys determined by the court using the Lodestar method was
$287 per hour [hereinafter Survey]. See Fenberg v. Cowden Auto. Long Term Disability Plan, No. C03-03898 SI, 2006 U.S. Dist. LEXIS 2575 (N.D. Cal. Jan. 11, 2006); Miller v. Vicorp Rests., Inc., No.
C-03-00777 RMW, 2006 U.S. Dist. LEXIS 10112 (N.D. Cal. Feb. 23, 2006); Gunn v. Reliance
Standard Life Ins, Co., 407 F. Supp. 2d 1162 (C.D. Cal. 2006); Gens v. Ferrell, No. C-05-2183 MHP,
2005 U.S. Dist. LEXIS 39115 (N.D. Cal. Dec. 21, 2005); Martinez v. Longs Drug Stores, Inc., No. S03-1843 DFL CMK, 2005 U.S. Dist. LEXIS 30226 (E.D. Cal. Nov. 28, 2005); White v. Save Mart
Supermarkets, No. S-03-2402 MCE KJM, 2005 U.S. Dist. LEXIS 24386 (E.D. Cal. Oct. 20, 2005);
Velasquez v. Khan, No. S-01-0246 MCE DAD, 2005 U.S. Dist. LEXIS 28956 (E.D. Cal. Sept. 28,
2005); Navarro v. Gen. Nutrition Corp., No. C-03-0603 SBA, 2005 U.S. Dist. LEXIS 39726 (N.D. Cal.
Sept. 20, 2005); Doran v. Vicorp Rests., Inc., 407 F. Supp. 2d 1120 (C.D. Cal. 2005); Foster Poultry,
Inc. v. Suntrust Bank, No. 1:04-cv-05513-OWW-SMS, 2005 U.S. Dist. LEXIS 36491 (E.D. Cal. Aug.
20, 2005); Lopez v. S.F. Unified Sch. Dist., 385 F. Supp. 2d 981 (N.D. Cal. 2005); Johnson v. Credit
Int’l, Inc., No. C-03-100 SC, 2005 U.S. Dist. LEXIS 21513 (N.D. Cal. July 28, 2005); Cancio v. Fin.
Credit Network, Inc., No. C-04-03755 THE, 2005 U.S. Dist. LEXIS 13626 (N.D. Cal. July 6, 2005);
Cortes v. Metro. Life Ins. Co., 380 F. Supp. 2d 1125 (C.D. Cal. 2005); Vedatech, Inc. v. St. Paul Fire &
Marine Ins. Co., Nos. C 04-1249 VRW, 04-1818 VRW, 04-1403 VRW, 2005 WL 1490445 (E.D. Cal.
June 17, 2005); Fleming v. Kemper Nat’l Serv., Inc., 373 F. Supp. 2d 1000 (N.D. Cal. 2005); Directv,
Inc. v. Atwal, No. S-032499 WBS DAD, 2005 WL 1388649 (E.D. Cal. June 8, 2005); White v.
Sutherland, Inc., No. S-03-2080 CMK, 2005 WL 1366487 (E.D. Cal. May 6, 2005); Baerthlein v. Elec.
Data Sys. Corp., No. C 05-00196 VRW, 2005 WL 818381 (N.D. Cal. Apr. 7, 2005); May v. Metro. Life
Ins. Co., No. C 03-5056CW, 2005 WL 839291 (N.D. Cal. Apr. 7, 2005); Hubbard v. Twin Oaks Health
& Rehab. Ctr., 406 F. Supp. 2d 1096 (E.D. Cal. 2005); Favela v. Target Corp., No. C-0400895WHA(JCS), 2005 WL 701606 (N.D. Cal. Mar. 28, 2005); Loera v. County of Los Angeles, No.
CV 047508PA, 2005 WL 1225982 (C.D. Cal. Mar. 21, 2005); Doran v. Corte Madera Inn Best
Western, 360 F. Supp. 2d 1057 (N.D. Cal. 2005); Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165
(E.D. Cal. 2005); Bonilla v. Starwood Hotels & Resorts Worldwide, Inc., 407 F. Supp. 2d 1107 (C.D.
Cal. 2005); Signatures Network, Inc. v. Estefan, No. C-03-4796 SBA(BZ), 2005 WL 151928 (N.D. Cal.

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average rate of $78.75 per hour, and law students received an average of
$90 per hour.124 Thus, the average hourly rate for a civil attorney practicing
in federal court is more than twice that awarded to counsel who attempts to
save the life of a death row inmate in California.
Another indicator of the average compensation received by civil
attorneys is the Laffey Matrix—a “matrix of hourly rates for attorneys of
varying experience levels and paralegals/law clerks” prepared by the Civil
Division of the United States Attorney’s Office for the District of
Columbia.125 The matrix is used by courts in the District of Columbia to
award fees to government attorneys under fee shifting statutes.126 As of
2006 to 2007, an attorney with twenty years of experience receives $425
per hour, an attorney with one year receives $205 per hour, and a paralegal
receives $120 per hour.127 To qualify as lead appointed counsel in a capital
case, an attorney must have at least four years of experience.128 Under the
Laffey Matrix, an attorney with four years of experience should receive
$245 per hour—nearly twice the rate received by counsel appointed by the
California Supreme Court in a capital case.129 Using the Laffey Matrix as
an indicator of average compensation, an attorney representing a capital
defendant before the California Supreme Court is paid twenty dollars per
hour more than a paralegal.
Finally, the United States District Courts in the Northern and Eastern
Districts of California have made determinations as to the average
compensation to be awarded to attorneys in civil actions in their
geographical area. In Yahoo!, Inc. v. Net Games, Inc.,130 the Northern
District calculated the “average market rate in the local legal community as
a whole using public data from the U.S. Census Bureau and Bureau of
Labor Statistics.”131 Based on this information, the court determined the
average rate to be $190 per hour.132 Some courts that have followed the
Yahoo! methodology have concluded that $200 per hour is the average
Jan. 24, 2005) (amended 2005 WL 1249522 (N.D. Cal. May 25, 2005)); Cambridge Elecs. Corp. v.
MGA Elecs., Inc., No. CV02-8636MMM(PJWX), 2005 WL 927179 (C.D. Cal. Jan. 18, 2005).
124. See Survey, supra note 123.
125. United States Attorney’s Office for the District of Columbia, Laffey Matrix 2003–2007, at
Explanatory Note 1, at http://www.usdoj.gov/usao/dc/Divisions/Civil_Division/Laffey_Matrix_6.html
(last visited May 10, 2007) [hereinafter Laffey Matrix 2003–2007].
126. See Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983).
127. See Laffey Matrix 2003–2007, supra note 125.
128. CAL. R. CT. 8.605(d)(1).
129. See Laffey Matrix 2003–2007, supra note 125.
130. Yahoo!, Inc. v. Net Games, Inc., 329 F. Supp. 2d 1179 (N.D. Cal. 2004).
131. See id. at 1189.
132. See id. at 1191.

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market rate.133 In the Eastern District, courts have “repeatedly found that
reasonable rates . . . are $250 per hour for an experienced attorney, $150
for associates, and $75 for paralegals.”134 In both geographical areas,
counsel in capital cases are paid substantially less than lawyers of similar
qualifications in civil cases.
In a recent appeal to the Ninth Circuit filed on behalf of an insolvent
corporation in an action to enjoin duplicate parallel proceedings in a
foreign country, the corporation’s attorney filed a declaration indicating
that the hourly rate for an attorney with more than twenty-five years of
experience was $540 per hour.135 I would be hard-pressed to explain to a
bartender or a nonlawyer acquaintance how it is appropriate that an
appellate lawyer who is attempting to save a human being’s life is
compensated at the rate of $140 per hour, while the same lawyer could
receive as much as $540 per hour to represent an insolvent corporation in
bankruptcy proceedings. As the American Bar Association has noted:
Unreasonably low fees not only deny the defendant the right to effective
representation . . . . They also place an unfair burden on skilled criminal
defense lawyers, especially those skilled in the highly specialized capital
area. These attorneys are forced to work for next to nothing after
assuming the responsibility of representing someone who faces a
possible sentence of death. Failure to provide appropriate compensation
discourages experienced criminal defense practitioners from accepting
assignments in capital cases (which require counsel to expend substantial
amounts of time and effort).136

There are ninety-four prisoners on death row for whom counsel has
not yet been appointed.137 For those prisoners currently on death row who
have had counsel appointed, the average time between entry of the
judgment of death and the appointment of counsel was approximately two
years (twenty-five months).138 These delays are increasing rapidly. Counsel
has not been appointed for any death row prisoner sentenced since 2003.139
Of the seventeen persons sentenced to death in 2002, counsel has been
133. See Baerthlein v. Elec. Data Sys. Corp., No. C 05-00196 VRW, 2005 WL 818381, at *5
(N.D. Cal. Apr. 7, 2005).
134. See Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165, 1171 (E.D. Cal. 2005) (internal
quotations omitted).
135. Declaration of Charles S. Donovan, Triton Container Int’l Ltd. v. Di Gregorio Navegaçao
Ltda., No. 05-15535 (9th Cir. Apr. 12, 2006) (on file with author).
136. AM. BAR ASS’N, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN
DEATH PENALTY CASES 79 (1989).
137. Docket Database, supra note 14.
138. Id.
139. Id.

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appointed in only two cases.140 Of the twenty-three persons who were
sentenced to death in the year 2001, counsel has been appointed in only one
case.141 Thus, the average delay in appointing counsel has increased to
more than three years (3.3 years).142
B. DELAYS IN CERTIFYING THE RECORD
Prior to the enactment of legislation in 1996 requiring that trial courts
expedite the preparation of trial records for appeals in death cases,
significant delays attributable to a trial court’s failure to prepare the trial
records in a timely manner impeded the appeals process.143 A review of the
Annual Reports of the Judicial Council of California for the period
covering 1997 to 2005 indicates that the trial courts are making progress in
expediting the preparation of the trial records in order to comply with
section 190.8(d) of the California Penal Code.144
The most recent data for the certification of the record for
completeness indicates that the trial courts are complying with the ninetyday rule approximately seventy-eight percent of the time.145 Requiring the
trial courts to prepare the record within ninety days, rather than waiting for
140. Id.
141. Id.
142. Id.
143. A note in the annual report for the Judicial Council of California Court Statistics Report for
1999 states:
During the first year in which the provisions of Stats. 1996, ch. 1086 (AB 195) (concerning
certification of the record in capital cases for completeness and accuracy) were in effect,
compliance with the requirements of the applicable statutes and related rules proved to be
inconsistent across the state. In many instances, the trial courts did not have sufficient
resources or training to make effective use of the new provisions, and in others, were unaware
of the new requirements because preparation of the appellate record in such cases traditionally
had been deferred until the appointment of appellate counsel.
JUDICIAL COUNCIL OF CAL., 1999 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS,
1988–1989 THROUGH 1997–1998, at 13.
144. Section 190.8 provides in relevant part:
(d) The trial court shall certify the record for completeness and for incorporation of all
corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition
of the death sentence unless good cause is shown. However, this time period may be extended
for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the
timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of
court adopted by the Judicial Council.
....
(g) The trial court shall certify the record for accuracy no later than 120 days after the
record has been delivered to appellate counsel. However, this time may be extended pursuant
to the timetable and procedures set forth in the rules of court adopted by the Judicial Council.
The trial court may hold one or more status conferences for purposes of timely certification of
the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.
CAL. PENAL CODE § 190.8(d), (g) (West 1999).
145. See JUDICIAL COUNCIL OF CAL., COURT STATISTICS REPORT FOR FISCAL YEARS 1997–2005
(on file with author).

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appointment of appellate counsel, means that the trial courts are no longer
the cause of the delay where preparing the record is concerned.
The data for the trial courts’ compliance with section 190.8(g) is less
instructive because there are a few years for which no data are available.146
In addition, because the record cannot be certified for accuracy until after
appellate counsel is appointed, it does not appear that there is anything the
trial courts can do to expedite the certification of the record for accuracy.
As discussed above, the delays that result from a scarcity of experienced
and willing appellate counsel are considerably greater than the time limits
for certifying the reporter’s transcript.
C. DELAYS IN BRIEFING, ARGUING, AND REACHING A DECISION
The delay in the appointment of counsel creates a ripple effect of
delays that reverberate throughout the remainder of the appellate process.
For prisoners sentenced since 1978 whose automatic appeals have been
decided, the average delay between the judgment of death and the filing of
the California Supreme Court’s opinion was 8.1 years.147
The overall delay in these cases is broken down as follows. The
average delay between the appointment of counsel and the filing of the
opening brief was 3.7 years.148 Due to the dearth of available counsel,
however, no opening briefs have been filed for prisoners condemned after
June 2000.149 The average delay between the filing of the opening brief and
the filing of the responsive brief by the attorney general prior to June 2000
was 6 months.150 The average delay between the filing of the responsive
brief by the attorney general and the prisoner’s reply brief was 6.5
months.151 The average delay between the filing of the reply brief and oral
argument before the California Supreme Court was 18.5 months.152 The
average delay between oral argument and the filing of the California
Supreme Court’s opinion between 1978 and January 19, 2004 was 6.2
months.153 Since January 1, 1989, the California Supreme Court has filed
146. Id.
147. Docket Database, supra note 14.
148. Id.
149. In fact, only one inmate sentenced in 2000 has filed an opening brief. Lester Wilson, who
was sentenced on June 29, 2000, filed his opening brief in his automatic appeal on July 19, 2004. See
id.
150. Id.
151. Id.
152. Id.
153. Id.

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its decisions in death penalty cases within ninety days of oral argument.154
The average delay between the judgment of death and oral argument before
the California Supreme Court was 7.6 years.155
It should be noted, however, that the average delay of eight years from
the judgment of death to the California Supreme Court’s decision
understates the increasing length of delays in more recent cases. For
example, the average delay between the judgment of death and the final
disposition of the automatic appeal for condemned prisoners convicted
between 1978 and 1989 was 6.6 years.156 Death row inmates convicted
between 1990 and 1996, however, have experienced an average delay of
approximately 10.7 years between the judgment of death and the Supreme
Court’s decision disposing of the automatic appeal.157
The California Supreme Court has issued only one opinion disposing
of an automatic appeal of a condemned prisoner convicted after 1997.158 In
that case, John George Brown was initially sentenced to death on June 15,
1982.159 The California Supreme Court affirmed his judgment of death in
his initial automatic appeal on August 25, 1988, after he had been on death
row 6.2 years. In 1998, the California Supreme Court granted his state
habeas corpus petition. Mr. Brown was retried, convicted, and again
sentenced to death on March 31, 2000. The California Supreme Court
affirmed the automatic appeal from his judgment of death on July 12,
2004.160 Mr. Brown’s state habeas corpus petition was denied September
28, 2005.161 His federal habeas corpus petition, filed November 7, 2005, is
currently pending.162
Between 1978 and 2005, 840 judgments of death were entered by
California trial courts.163 As illustrated by the chart below, during that same
154. Letter from the Honorable Ronald M. George, Chief Justice of the California Supreme Court,
to author (Dec. 26, 2006) (on file with author) [hereinafter George Letter].
155. Docket Database, supra note 14.
156. Id.
157. Id.
158. Id. This figure is as of January 19, 2006.
159. People v. Brown, 93 P.3d 244 (Cal. 2004).
160. Docket, People v. Brown, No. S087243 (Cal. Mar. 31, 2000), available at
http://appellatecases.courtinfo.ca.gov/.
161. Docket, People v. Brown, No. S120253 (Cal. Nov. 4, 2003), available at
http://appellatecases.courtinfo.ca.gov/.
162. Docket, Brown v. Ornoski, No. 2:05-cv-07964-AHM (E.D. Cal. Nov. 7, 2005), available at
https://ecf.cacd.uscourts.gov.
163. Docket Database, supra note 14. This figure is larger than the current number of persons on
death row because (1) some prisoners have had more than one judgment of death rendered against them,

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period, the California Supreme Court decided 313 automatic appeals. Thus,
the discrepancy between the number of judgments of death rendered and
the number of direct appeals decided by the California Supreme Court as of
the end of 2005 was 527 cases.164
FIGURE 2: California Supreme Court backlog in deciding automatic appeals
of death row inmates 1978–2005

Total judgments of death rendered
Total automatic appeals decided

D. RECOMMENDATIONS FOR REDUCING THE DELAY IN AUTOMATIC
APPEALS
The California Legislature and the United States Congress hold the
keys to reducing the delay in releasing persons who have been wrongfully
convicted or in determining whether a person’s trial and sentence were free
of reversible error. The deterrent value of California’s death penalty
scheme is seriously called into question when one considers that since
1978, more than four times as many death row inmates have died of natural
causes, suicide, or violence within prison walls than have been executed.165
(2) the judgments of death or sentences of some prisoners have been vacated, and (3) some prisoners
have died by means other than execution while on death row.
164. Id.
165. See Cal. Dep’t of Corrs. & Rehab., supra note 76.

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An extraordinary delay in reaching a final disposition lends troubling
support to the argument that death row prisoners are being subjected to
cruel and unusual punishment in violation of the Eighth Amendment
because of their prolonged imprisonment without any closure concerning
their fate. Eleven years ago, in Lackey v. Texas, Justice Stevens noted that
the “question whether executing a prisoner who has already spent some 17
years on death row violates the Eighth Amendment’s prohibition against
cruel and unusual punishment” is “importan[t]” and “novel” and “not
without foundation.”166
In his Lackey memorandum, Justice Stevens explained the Court’s
decision in Gregg v. Georgia167 that the Eighth Amendment does not
prohibit capital punishment “rested in large part on the grounds that (1) the
death penalty was considered permissible by the Framers, and (2) the death
penalty might serve ‘two principal social purposes: retribution and
deterrence.’”168 Justice Stevens also wrote: “It is arguable that neither
ground retains any force for prisoners who have spent some 17 years under
a sentence of death.”169 As of January 2006, 198 prisoners had been on
death row for more than seventeen years in California.170
Justice Stevens pointed out that “the Court’s denial of certiorari does
not constitute a ruling on the merits.”171 “Often, a denial of certiorari on a
novel issue will permit the state and federal courts to ‘serve as laboratories
in which the issue receives further study before it is addressed by this
Court.’”172
Justice Breyer agreed with Justice Stevens that “the issue is an
important undecided one.”173 Justice Breyer has dissented from the denial
of certiorari in four cases since he joined in Justice Stevens’s memorandum
in Lackey.174 In his dissent from the denial of a writ of certiorari in Elledge
166. Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial certiorari).
167. Gregg v. Georgia, 428 U.S. 153 (1976).
168. Lackey, 514 U.S. at 1045 (internal citations omitted) (quoting Gregg, 428 U.S. at 183
(Stewart, Powell & Stevens, JJ.)).
169. Id.
170. Docket Database, supra note 14.
171. Lackey, 514 U.S. at 1045.
172. Id. (quoting McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, Blackmun & Powell,
JJ., respecting denial of certiorari)).
173. Id.
174. Allen v. Ornoski, 126 S. Ct. 1139 (2006) (Breyer, J., dissenting from denial of certiorari);
Foster v. Florida, 537 U.S. 990 (2002) (Breyer, J., dissenting from same); Knight v. Florida, 528 U.S.
990, 993 (1999) (Breyer, J., dissenting from same); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J.,
dissenting from same).

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v. Florida,175 Justice Breyer stated that imprisonment for more than twentythree years under sentence of death was “unusual” and “especially ‘cruel’”
to a death row inmate because “he ha[d] experienced that delay because of
the State’s own faulty procedures and not because of frivolous appeals on
his own part.”176
On January 16, 2006, Justice Breyer again dissented from a denial of
certiorari, this time in Allen v. Ornoski.177 Justice Breyer wrote:
Petitioner is 76 years old, blind, suffers from diabetes, is confined to a
wheelchair, and has been on death row for 23 years. I believe that in the
circumstances he raises a significant question as to whether his execution
would constitute “cruel and unusual punishment.” I would grant the
application for stay of execution.178

The merits of the question of whether a delay of seventeen years
(Lackey) or twenty-three years (Allen) is cruel and unusual punishment
have not been decided by the United States Supreme Court. The fact that
over 124 prisoners have been on California’s death row for more than
twenty years may well induce four members of the United States Supreme
Court some day to grant a writ of certiorari to resolve the question of
whether imprisonment for decades under sentence of death is itself cruel
and unusual punishment.
As regrettably illustrated by the seventeen years it took to decide the
automatic appeal in the Ramirez case, the California Legislature continues
to ignore the increasing delay in finally determining the validity of death
penalty judgments in California. The average time a death row inmate is
imprisoned on death row in California will soon exceed twenty years in
every case.179
In addition to raising concern over violating the Eighth Amendment’s
protection against cruel and unusual punishment, the delays in appointment
of appellate counsel may also in the future raise due process concerns
175. Elledge, 525 U.S. at 944.
176. Id. In Knight v. Florida, Justice Breyer noted: “It is difficult to deny the suffering inherent in
a prolonged wait for execution—a matter which courts and individual judges have long recognized.”
Knight, 528 U.S. at 994. Although Justice Breyer did not use the term, this suffering has come to be
known as the “death row phenomenon.” See, e.g., Soering v. United Kingdom, 11 Eur. Ct. H.R. 439,
439 (1989) (coining term); Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s
Human Rights Under International Law?, 11 EUR. J. INT’L L. 833, 834 (2000) (discussing the meaning
of the term).
177. Allen, 126 S. Ct. at 1139.
178. Id. (internal citations omitted) (quoting U.S. CONST. amend. VIII). The petitioner, Clarence
Ray Allen, was executed at San Quentin Prison on January 17, 2006.
179. See generally Docket Database, supra note 14.

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because only indigent prisoners must wait for counsel to be appointed. The
doctrine undergirding the right to counsel on appeal is the right of indigent
prisoners to be afforded the same Sixth Amendment right to counsel as
prisoners who can afford to pay for their own counsel.180
1. California Courts of Appeal Should Review Automatic Appeals
The solution to the increasing delay between the entry of a judgment
of death by the trial court and the ultimate grant or denial of relief from its
execution is obvious. First, the California Legislature should amend the
state constitution to provide that the California Courts of Appeal should
have jurisdiction to review automatic appeals from death penalty
judgments. It should not continue to blind itself to the fact that the seven
members of the California Supreme Court are unable to keep up with the
increasing backlog of automatic death penalty appeals awaiting disposition.
The California Legislature should take steps to amend article VI,
section 11 of the California Constitution, which now provides: “The
Supreme Court has appellate jurisdiction when judgment of death has been
pronounced. With that exception courts of appeal have appellate
jurisdiction when superior courts have original jurisdiction . . . .”181 The
automatic appeal of a judgment of death should be heard by the California
Court of Appeal that reviews orders of the superior courts within its
district. The Courts of Appeal should be required to publish their opinions
in each death penalty case. The California Supreme Court should have the
discretion to grant or deny a motion for a review of a California Court of
Appeal’s decision in an automatic appeal from a judgment of death.
Discretionary review would permit the Supreme Court to resolve any
conflicts in the decisions rendered by the various districts and divisions of
the California Courts of Appeal or to consider novel questions of federal
constitutional law.
This recommendation precisely parallels present federal law. A federal
death row inmate convicted in federal court of a capital offense does not
have the right to a direct appeal to the United States Supreme Court. The
180. E.g., Douglas v. California, 372 U.S. 353, 357–58 (1963) (“There is lacking that equality
demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the
benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on
his behalf, while the indigent, already burdened by a preliminary determination that his case is without
merit, is forced to shift for himself.”); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (addressing a state law
that required all defendants to pay for a trial transcript in order to prepare an appeal, and stating that a
state cannot grant appellate review “in a way that discriminates against some convicted defendants on
account of their poverty”).
181. CAL. CONST. art. VI, § 11.

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Supreme Court has jurisdiction over cases reviewed by a United States
Court of Appeals “[b]y writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of judgment or
decree.”182 Thus, a writ of certiorari is “not a matter of right, but of judicial
discretion.”183 As the federal system illustrates, just because “death is
different” does not mean that intermediate appellate courts cannot provide
the necessary level of review.184
The Timothy McVeigh case presents a prime example of the
effectiveness of the federal system in reviewing appeals and applications
for writs of habeas corpus from a conviction under federal law in a timely
manner. Mr. McVeigh was indicted in the Western District of Oklahoma on
August 10, 1995.185 He was charged with eleven counts stemming from the
bombing of the Alfred P. Murrah Federal Building that resulted in the
deaths of 168 persons.186
The McVeigh trial commenced on April 24, 1997.187 The jury
returned guilty verdicts on all eleven counts on June 2, 1997. On June 14,
1997, the jury recommended that Mr. McVeigh be sentenced to death. On
August 14, 1997, the district court sentenced him to death on each count.
Mr. McVeigh filed a notice of appeal on that same date.188
The Tenth Circuit affirmed the conviction and sentence on September
8, 1998, less than thirteen months after entry of the judgment and sentence
in the district court.189 The United States Supreme Court denied Mr.
McVeigh’s petition for a writ of certiorari eight months later on March 8,
1999.190
182. 28 U.S.C. § 1254 (2000).
183. SUP. CT. R. 10.
184. Robert Weisberg has argued that allowing the California Courts of Appeal to review death
sentences would threaten uniformity and increase arbitrariness. See Robert Weisberg, Redistributing the
Wealth of Capital Cases: Changing Death Penalty Appeals in California, 28 SANTA CLARA L. REV.
243, 262–64 (1988). If the federal system is adopted in California, any lack of uniformity, arbitrariness,
or conflicts between the Courts of Appeal would be resolved by the grant of review by the California
Supreme Court. See Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of
State Supreme Courts in an Era of Judicial Politicization, 72 NOTRE DAME L. REV. 1133, 1138 (1997)
(arguing that with regard to the California Courts of Appeal hearing death penalty cases, “the
uniformity of ultimate judgment would be preserved in the process of considering applications for
discretionary review”).
185. Venue was subsequently transferred to the District of Colorado. United States v. McVeigh,
918 F. Supp. 1467 (W.D. Okla. 1996).
186. United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. 1998).
187. Id. at 1177.
188. Id. at 1179.
189. Id. at 1222.
190. McVeigh v. United States, 526 U.S. 1007 (1999).

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On March 6, 2000, Mr. McVeigh filed a motion to vacate his
conviction and sentence pursuant to 28 U.S.C. § 2255 and a motion for a
new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure
based on a claim of newly discovered evidence.191 The motions were
denied on October 12, 2000. On December 11, 2000, Mr. McVeigh filed a
notice that he did not intend to appeal the denial of his § 2255 motion to
vacate his conviction and sentence.192
The date for Mr. McVeigh’s execution was set for May 16, 2001. On
May 10, 2001, however, Attorney General John Ashcroft granted a thirtyday stay after discovering that the Federal Bureau of Investigation had
failed to disclose thousands of pages of documents to Mr. McVeigh’s
defense team.193
On June 6, 2001, Mr. McVeigh filed a petition to stay his execution in
the district court. It was denied the same day.194 On June 7, 2001, the Tenth
Circuit affirmed the denial of a stay of execution.195 Mr. McVeigh was
executed on June 11, 2001, after spending 3.8 years on death row.196
The time that elapsed from the entry of the district court’s judgment to
the affirmance of the conviction and sentence on direct appeal by the Tenth
Circuit was one year and twenty-five days. The comparable average delay
in California between the trial court’s judgment and the affirmance on
direct appeal in 1998 by the California Supreme Court would have been 8
years and 310 days.197
Timothy McVeigh’s case is by no means an exception. Currently,
there are forty-two persons on death row in the federal system.198 Of those
191. United States v. McVeigh, 118 F. Supp. 2d 1137, 1139 (D. Colo. 2000).
192. Notice of Petitioner Timothy McVeigh Not to Appeal Re: Judgment, McVeigh v. United
States, No. 1:-CV-00494-RPM (D. Colo. Dec. 11, 2000).
193. Mike Tharp, Chitra Ragavan & Angie Cannon, A Notch in the Paranoia Belt: Timothy
McVeigh Execution Delayed as Additional FBI Documents Are Discovered, U.S. NEWS & WORLD REP.,
May 21, 2001, at 20.
194. United States v. McVeigh, No. 96-CR-68-M, 2001 WL 611163 (D. Colo. June 6, 2001).
195. United States v. McVeigh, 9 F. App’x 980 (10th Cir. 2001).
196. Two of the lawyers who were appointed to represent Mr. McVeigh at his trial acted as his
appellate counsel before the Tenth Circuit. Thus, there was no delay in appointing appellate counsel.
197. For automatic appeals decided by the California Supreme Court in 1998 (the year the Tenth
Circuit affirmed Timothy McVeigh’s conviction and sentence), the average delay between entry of the
judgment of death and the issuance of the California Supreme Court’s opinion was 8.85 years. See
Docket Database, supra note 14. No automatic appeals have yet been decided for prisoners convicted
and sentenced in California in 1997 (the year Timothy McVeigh was convicted and sentenced), so it is
not possible to calculate the delay in California for the resolution of the automatic appeals of prisoners
convicted in 1997, except to say that it is already in excess of nine years.
198. Id.

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forty-two, thirty-seven have had their direct appeal decided by a United
States Court of Appeals.199 The average delay in deciding that appeal is
only two and a half years.200 This figure includes the time it takes the Court
of Appeals to decide whether to rehear the case en banc.201 Some may
argue that allowing the California Supreme Court to hear discretionary
appeals from the California Courts of Appeal will only add another layer of
lengthy review.202 However, the average delay between the decision of the
United States Court of Appeals and that of the United States Supreme
Court with regard to an inmate’s petition for a writ of certiorari is only nine
months.203 The comparable average delay in California between a trial
court’s judgment and affirmance on automatic appeal is currently eight
years.204
With the exception of appeals from death penalty judgments, the
California Courts of Appeal have had, since their inception, appellate
jurisdiction over all criminal appeals from state trial court judgments. This
includes appeals filed by defendants convicted of first degree murder with
special circumstances who were sentenced to life in prison without the
possibility of parole rather than death.205 The only difference between the
review undertaken by the Courts of Appeal in such cases and that of the
California Supreme Court in automatic appeals from judgments of death is
that the Supreme Court must consider whether the mitigating circumstances
were properly considered by the jury in determining that the death penalty
should be imposed.206 Otherwise, the law and procedures are identical:
At the initial phase of the trial, the trier of fact decides the issue of
defendant’s guilt or innocence of first degree murder. If the defendant is
found guilty, a determination must be made as to the existence of any
“special circumstances.” If the trier of fact finds at least one alleged
special circumstance to be true, the case proceeds to the “penalty” phase
of the trial.207

A review of 100 appeals from first degree murder convictions with
special circumstances decided by the California Courts of Appeal between
199. Id.
200. Id.
201. Id.
202. See Uelmen, supra note 184, at 1138–39.
203. Docket Database, supra note 14.
204. Id.
205. See CAL. CONST. art. VI, § 11; CAL. PENAL CODE § 1237 (West 2004).
206. See, e.g., People v. Ramirez, 139 P.3d 64, 111–12 (Cal. 2006) (considering jury instructions
with regard to mitigating evidence on an automatic appeal from judgment of death).
207. People v. Bacigalupo, 862 P.2d 808, 813 (Cal. 1993) (internal citations omitted).

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June 2005 and June 2006 revealed the following statistics regarding the
average delays in reaching a final decision:
Notice of appeal to appointment of counsel: 1.9 months.
Appointment of counsel to submission of case/oral argument: 15.1
months.
Submission of the case/oral argument to final disposition: 24 days.
Overall delay: 18.6 months.208

During that same one-year period, the California Supreme Court
issued opinions in approximately thirty-one automatic appeals from
convictions and sentences of death in first degree murder cases with special
circumstances.209 The average delay in those cases was over twelve years.
The disparity in the delays currently experienced in the two courts is
illustrated in the chart below.
FIGURE 3: First degree murder with special circumstances—Appeals
decided 2005–2006. Filing of appeal to appellate court decision: Average
delay in years.

Notice of appeal to appointment of counsel
Appointment of counsel to oral argument
Submission of case to disposition

208.
209.

Docket Database, supra note 14.
Id.

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The 105 justices of the California Courts of Appeal disposed of
15,856 appeals in the fiscal year of 2004 to 2005.210 In the same year,
eighteen appeals from judgments of death were automatically filed in the
California Supreme Court.211 Had these appeals from judgments of death
been automatically filed in the California Courts of Appeal, they would
have increased the courts’ caseload by only one tenth of one percent
(0.0011). Similarly, between 1995 and 2005, the California Courts of
Appeal disposed of, on average, 26,631 appeals per year.212 During that
same period, twenty-eight automatic appeals from judgments of death, on
average, were filed in the California Supreme Court per year.213 Based on
these ten-year averages, transferring the automatic appeals from judgments
of death to the California Courts of Appeal would increase their caseloads
by only one and one half tenths of one percent (0.0015).
The increased caseload is even smaller if one takes into account that
the work would be distributed among the six districts of the California
Courts of Appeal. If the Courts of Appeal had jurisdiction over automatic
appeals of the judgments of death entered since 1978, the distribution by
Courts of Appeal Districts would have been as follows:214
14% in the First District215
34% in the Second District216
10% in the Third District217
26% in the Fourth District218
11% in the Fifth District219
210. See 2006 STATISTICS REPORT, supra note 109, at 20. The 2006 Statistics Report is based on
information obtained from the California courts regarding appeals filed in 2004–2005. The report,
however, assumes that the courts will decide approximately the same number of appeals in 2005–2006
as they did in 2004–2005. Id. at 15.
211. Id. at 4.
212. See id. at 25 (providing data from which the average can be calculated).
213. See id. at 4 (providing data from which the average can be calculated).
214. These percentages are equal to the percentage of automatic appeals from judgments of
superior courts located in counties covered by each district. For instance, 14% of automatic appeals
commenced since 1978 are from judgments of superior courts located in counties covered by the First
District.
215. The First District includes Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin,
Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma counties.
216. The Second District includes Los Angeles, Ventura, San Luis Obispo, and Santa Barbara
counties.
217. The Third District includes Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn,
Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou,
Sutter, Tehama, Trinity, Yolo, and Yuba counties.
218. The Fourth District includes San Diego, Imperial, Riverside, Inyo, San Bernardino, and
Orange counties.

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5% in the Sixth District220

This means that for an average of twenty-eight new death penalty
cases each year, the average annual increase in work load for the Courts of
Appeal Districts would have been:
First District: Four cases
Second District: Nine cases
Third District: Three cases
Fourth District: Seven cases
Fifth District: Three cases
Sixth District: Two cases

These statistics demonstrate that shifting the jurisdiction over
automatic appeals from death penalty judgments could be absorbed by the
Courts of Appeal and would thereby relieve the California Supreme Court
of an increasing backlog of capital cases.
The California Legislature should also consider amending the
California Constitution to authorize the Supreme Court to transfer to the
Courts of Appeal those pending cases that have not been calendared for
oral argument.221 This authority would relieve the Supreme Court of its
seemingly impossible task of attempting to reduce its backlog of appeals
from judgments of death and would also permit it to fulfill its responsibility
to review civil and noncapital criminal appeals as well.
2. Cases Should Be Triaged for Early Appointment of Appellate Counsel
The process of appointing appellate counsel should be based on a
determination by the California Supreme Court of the likelihood of a
successful appeal on the question of guilt. Appointment of counsel should
be made swiftly in those cases. Lengthy delays in appointing appellate
counsel can be highly prejudicial to a prisoner’s due process rights,
particularly where the reviewing court concludes that the conviction must
be set aside and the prisoner is entitled to a new trial on the issue of guilt.
In such instances, a prolonged delay in retrying a case can result in the
death of potential witnesses, the loss or impairment of their memory, or the
destruction of evidence that may support a defense theory.
219. The Fifth District includes Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus,
Tulare, and Tuolumne counties.
220. The Sixth District includes San Benito, Santa Clara, Santa Cruz, and Monterey counties.
221. Docket Database, supra note 14.

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Conversely, where the sole claim on appeal is that the trial court erred
in imposing the death penalty, and not that the error occurred in upholding
the judgment of guilt, the effect of excessive delay is in some respects
advantageous to appellants because it will prolong their lives before the
judgment is executed.222 Therefore, priority should be given to those
automatic appeals wherein claims are made that attack a first degree
murder conviction or the sufficiency of the evidence of guilt or special
circumstances, rather than the sentence.
To facilitate a triage process, the California Legislature should require
a condemned prisoner’s trial counsel to file an appellate memorandum with
the clerk of the superior court within thirty days of the entry of the
judgment of death. This memorandum should set forth each of the alleged
errors that should be considered on the automatic appeal. It could then be
used to determine which cases should receive priority in the appointment of
counsel in order to reduce the harmful effects of delay should a new trial on
the issue of guilt be ordered.
3. Appointed Counsel Should Be Adequately Compensated; More Counsel
Should Be Trained in Handling Capital Cases
The California Legislature must provide sufficient funds to
compensate qualified lawyers who are willing to accept an appointment to
represent death row inmates in their automatic appeals.223 There is no
justification for the Legislature’s failure to address the longstanding
shortage of qualified counsel. Private practitioners who can bear the
financial sacrifice of accepting a court-appointment at the present hourly
rates are scarce. Accepting an appointment to represent a death row inmate
on direct appeals requires a lawyer to devote an average of more than
eleven years to protecting the inmate’s interests.224
In addition to increasing the hourly rate to induce lawyers to serve as
counsel for death row inmates, the California Legislature should also
provide funds to law schools to train students and lawyers who wish to
specialize in the representation of condemned prisoners in automatic direct
222. See POWELL COMMITTEE REPORT, supra note 9, at 5 (“The inmate under capital sentence,
whose guilt frequently is never in question, has every incentive to delay the proceedings that must take
place before that sentence is carried out.”).
223. See infra Part V.B.2. With regard to appointment of counsel in state habeas corpus
proceedings, I recommend below that the current system be changed to provide continuity of counsel
for all state and federal habeas corpus proceedings. The compensation for such counsel should be borne
by the federal and state governments.
224. Docket Database, supra note 14.

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appeals and in habeas corpus proceedings. The curriculum should include a
review of the following: (1) the law concerning the sufficiency of the
evidence required to prove first degree murder with special circumstances;
(2) the type of evidence admissible in a death penalty sentencing hearing;
and (3) the relevant decisions of the United States Supreme Court limiting
the application of the death penalty.225 The curriculum should also include
classes on appellate brief writing and oral advocacy and the facts that must
be alleged in a habeas corpus petition and presented if an evidentiary
hearing is ordered. Special classes should also be presented regarding the
limitations on federal habeas corpus jurisdiction including the exhaustion
requirement, the bar from rearguing the merits because of adequate and
independent state grounds, the special statutes of limitations for death
penalty cases, and the restrictions against successive applications for relief.
The instructors at the capital case institutes should include members of
the private bar who have served as appellate counsel on automatic appeals
in capital cases, or who have represented death row inmates in state or
federal habeas corpus proceedings. Members of the death penalty units in
the Federal Public Defenders Offices in the Central and Eastern Districts of
California could provide expert guidance to class participants.
As part of their class assignments, the lawyers and students training at
such institutes could be required to assist counsel who are presently
representing death row inmates. The trainees could assist counsel in their
research for the preparation of pleadings and in the discovery of witnesses
to support the allegations in habeas corpus petitions.226
225. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (concluding that the execution of an
individual who committed murder as a juvenile was unconstitutional under the Eighth Amendment);
Atkins v. Virginia, 536 U.S. 304 (2002) (concluding that the execution of an individual who is mentally
disabled was unconstitutional under the Eighth Amendment).
226. A few programs, similar to the one I am advocating, exist throughout the nation. For
example, Boalt Hall School of Law sponsors a one-year clinic in which “Boalt Hall faculty
members . . . supervise law students in investigating cases, interviewing witnesses and launching death
row appeals in state and federal court.” Press Release, Janet Gilmore, UC Berkeley School of Law
Announces Establishment of New Law Clinic, Program to Assist California Inmates on Death Row
(Jan. 4, 2001), available at http://www.berkeley.edu/news/media/releases/2001/01/04_law.html; School
of Law–Boalt Hall, Death Penalty Clinic, at http://www.law.berkeley.edu/clinics/dpclinic/ (last visited
Mar. 1, 2007). In Boalt Hall’s program, students do not work on automatic appeals; rather, they focus
on petitions for writs of habeas corpus at the state and federal levels. See Press Release, supra.
Similarly, New York University School of Law offers a year-long course that includes “working with
clinic faculty and present and former staff attorneys of the NAACP Legal Defense Fund (LDF) on death
cases as well as a variety of issues relating to capital punishment, habeas corpus, and the criminal
justice system.” NYU School of Law, Capital Defender Clinic–New York, at http://www.law.nyu.edu/
clinics/year/capitalny/ (last visited Mar. 1, 2007). Students may work on actual cases, including cases
from California. Id.

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The funding of capital case institutes and increased compensation for
attorneys could come from the money that would be saved by reducing the
funds now expended to house death row inmates during the more than
three-year delay caused by the difficulty of finding qualified counsel who
are willing to serve at $140 per hour. Additionally, as set forth in greater
detail in Part V, the same attorney should represent a death row inmate at
the state and federal habeas level. Such continuity of counsel could reduce
or eliminate the long delay attributable to the exhaustion of state remedies.
The elimination of the average three-year delay now necessary to exhaust
claims in seventy-four percent of the federal habeas corpus applications
and the same delay in appointing counsel to represent death row inmates on
automatic appeal could reduce the time spent on death row by an average
of six years. This would save roughly $744,900 per prisoner ($124,150 per
year multiplied by six years).227
V. DELAYS INHERENT IN POSTCONVICTION REMEDIES
A. STATE HABEAS CORPUS RELIEF
In addition to the right to an automatic appeal, California death row
inmates may also file a petition for a writ of habeas corpus under state law
based on alleged violations of their state or federal rights that were not
presented during their trials and were not forfeited by the failure to
object.228 This collateral review process adds significant delays to the
execution of a death sentence.
Article I of the California Constitution, adopted in 1849, provided in
section 5 that “[t]he privilege of the writ of habeas corpus shall not be
suspended, unless when, in cases of rebellion or invasion, the public safety
may require its suspension.”229 Implicit in the language of article I, section
5 is a recognition that the common law right to habeas corpus was
guaranteed to state prisoners. Section 10 of article VI of the California
Constitution, adopted in 1966, provides as follows: “The Supreme Court,
227. See Tempest, supra note 68 (setting forth housing costs for death row inmates); Docket
Database, supra note 14 (setting forth statistics regarding the length of the average delay in exhausting
state remedies).
228. See CAL. PENAL CODE § 1473 (West 2000) (“Every person unlawfully imprisoned or
restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus . . . .”).
229. CAL. CONST. of 1849, art. I, § 5.

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courts of appeal, superior courts, and their judges have original jurisdiction
in habeas corpus proceedings.”230
In 1972, the California Legislature enacted California Penal Code
section 1473. Section 1473 reads as follows: “Every person unlawfully
imprisoned or restrained of his liberty, under any pretense whatever, may
prosecute a writ of habeas corpus . . . .”231 State prisoners who file an
application for habeas corpus do not have the right to appeal to the Courts
of Appeal or the Supreme Court if their request for relief filed in the
superior court is denied. They may, however, file an original petition for
habeas corpus in a higher court.232
Notwithstanding a condemned prisoner’s right pursuant to article I,
section 10, to file a petition for a writ of habeas corpus in the superior
courts, there is a strong financial incentive to file in the Supreme Court. If a
death row inmate is indigent, the California Supreme Court will appoint
counsel. The Supreme Court Policies Arising from Judgments of Death,
Policy 3, however, provides:
Absent prior authorization by this court, this court will not compensate
counsel for the filing of any other motion, petition, or pleading in any
other California or federal court or court of another state. Counsel who
seek compensation for representation in another court should secure
appointment by, and compensation from, that court.233
230. CAL. CONST. art. VI, § 10. Section 10 of article VI was derived from what was formerly
section 4 of article VI, adopted in 1879. It provided, “The Court shall also have power to issue writs of
mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the
complete exercise of its appellate jurisdiction.” Former section 4 also granted each justice “power to
issue writs of habeas corpus to any part of the State, upon petition by or on behalf of any person held in
actual custody, and make such writs returnable before himself, or the Supreme Court, or before any
Superior Court in the State, or before any Judge thereof.” In 1904, when the Courts of Appeal were
created, section 4 was amended to provide the same power to the courts of appeal. See 1903 Cal. Stat.
739.
231. CAL. PENAL CODE § 1473.
232. In Carey v. Saffold, the Supreme Court noted:
California’s collateral review system differs from that of other States in that it does not
require, technically speaking, appellate review of a lower court determination. Instead, it
contemplates that a prisoner will file a new “original” habeas petition. . . .
. . . [A] prisoner who files that same petition in a higher, reviewing court will find that he
can obtain the basic appellate review that he seeks, even though it is dubbed an “original”
petition.
Carey v. Saffold, 536 U.S. 214, 221–22 (2002). See also People v. Gallardo, 92 Cal. Rptr. 2d 161, 169
(Ct. App. 2000) (“Although the People may appeal the granting of a writ of habeas corpus, the detainee
has no right to appeal its denial and must instead file a new habeas corpus petition in the reviewing
court.”).
233. SUPREME COURT POLICIES ARISING FROM JUDGMENTS OF DEATH, at Policy 3, 2-1 (Cal.
1989) [hereinafter DEATH POLICY].

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1. Appointment of Counsel in State Habeas Corpus Proceedings
The California Legislature has empowered the Supreme Court, but no
other court, “to appoint counsel to represent all state prisoners subject to a
capital sentence for purposes of state postconviction proceedings.”234 As a
general rule, the California Supreme Court attempts to appoint state habeas
corpus counsel at the same time automatic appeal counsel is appointed.235
In practice, however, several factors impede the prompt appointment of
counsel.
Similar to the situation concerning the scarcity of counsel available to
represent death row inmates in an automatic appeal, there is also a shortage
of qualified attorney applicants who are willing to file and prosecute
petitions for writs of habeas corpus on behalf of death row inmates because
of the inadequate compensation for such representation. Another factor
impeding prompt appointment of counsel is that the amount of funding
authorized for investigation services and expenses is only $25,000.236
Habeas counsel is limited to the presentation of evidence of alleged state
law or federal constitutional violations that do not appear in the trial
record.237 This means that counsel must conduct an investigation to
discover facts and witnesses not presented at trial that will demonstrate that
state habeas corpus relief should be granted.238 As one commentator put it,
“[i]n a habeas proceeding . . . attorneys try to sniff out information that was
not in the record, such as the withholding of material evidence, ineffective
representation by counsel or a client’s mental retardation.”239
The Legislature created the California Habeas Corpus Resource
Center (“HCRC”), whose attorneys “may be appointed by the Supreme
Court to represent any person convicted and sentenced to death in this state
234.

CAL. GOV’T CODE § 68662 (West Supp. 2006). Section 68662 provides:
The Supreme Court shall offer to appoint counsel to represent all state prisoners subject to
a capital sentence for purposes of state postconviction proceedings, and shall enter an order
containing one of the following:
(a) The appointment of one or more counsel to represent the prisoner in postconviction
state proceedings upon a finding that the person is indigent and has accepted the offer to
appoint counsel or is unable to competently decide whether to accept or reject that offer.
(b) A finding, after a hearing if necessary, that the prisoner rejected the offer to appoint
counsel and made that decision with full understanding of the legal consequences of the
decision.
(c) The denial to appoint counsel upon a finding that the person is not indigent.

Id.
235. Information provided by Frederick K. Ohlrich, Court Administrator and Clerk of the
California Supreme Court (Aug. 18, 2006) (on file with author).
236. DEATH POLICY, supra note 233, at Policy 3, 2-2.1.
237. See People v. Waidla, 996 P.2d 46, 52 (Cal. 2000).
238. DEATH POLICY, supra note 233, at Policy 3, 1-1.
239. Habeas Center Needs Help for Death Row Inmates, CAL. BAR J., Dec. 2004.

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who is without counsel, and who is determined by a court . . . to be
indigent, for the purpose of instituting and prosecuting postconviction
actions in the state and federal courts.”240 The HCRC is also charged with
the duty of assisting “the Supreme Court in recruiting members of the
private bar to accept death penalty habeas case appointments”241 and to
“establish and periodically update a roster of attorneys qualified as counsel
in postconviction proceedings in capital cases.”242
While the HCRC is available to take appointments in capital habeas
corpus proceedings, the number of cases the HCRC can accept is limited
both by a statutory cap on the number of attorneys it may hire and by
available fiscal resources.243 The Office of the State Public Defender is
available for no more than a very small number of habeas corpus
appointments, also due to limited staffing.244 As a result, the vast majority
of habeas corpus appointments are filled by private counsel. The HCRC
and the California Appellate Project (“CAP”) have developed a training
and assistance program designed to meet the needs of attorneys who take
capital state habeas appointments.245 The services provided include a
“Habeas College” conducted by HCRC staff, as well as ongoing mentoring
and assistance with case-planning and follow-up.246
2. Review of State Habeas Corpus Petitions
The California Supreme Court has adopted the following procedure in
reviewing a condemned prisoner’s petition for habeas corpus relief. The
court determines whether the petition would be entitled to relief assuming
the allegations in the petition are true. “The petition ‘must allege unlawful
restraint, name the person by whom the petitioner is so restrained, and
specify the facts on which [the petitioner] bases his [or her] claim that the
restraint is unlawful.’”247
240. CAL. GOV’T CODE § 68661(a) (West Supp. 2006).
241. Id. § 68661(c).
242. Id. § 68661(d).
243. See id. § 68661(a).
244. Ohlrich, supra note 235.
245. See Habeas Corpus Res. Ctr., Memorandum Regarding Law Firm Appointments in Capital
State Habeas Corpus Proceedings (Mar. 6, 2006).
246. See id.
247. See People v. Romero, 883 P.2d 388, 391 (Cal. 1994) (alteration in original) (quoting In re
Lawler, 588 P.2d 1257, 1259 (Cal. 1979)). See also People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995)
(“An appellate court receiving such a petition evaluates it by asking whether, assuming the petition’s
factual allegations are true, the petitioner would be entitled to relief.”).

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“If the court determines that the petition does not state a prima facie
case for relief or that the claims are all procedurally barred, the court will
deny the petition outright, such dispositions being commonly referred to as
‘summary denials.’”248 For example, a petitioner may not obtain habeas
corpus relief based on alleged errors that were not objected to at trial.249
Pursuant to Rule 8.380(c) of the California Rules of Court, if a
petition for a writ of habeas corpus is filed by a person who is not
represented by counsel,
[t]he court may request an informal written response from the
respondent, the real party in interest, or an interested person. . . . If a
response is filed, the court must notify the petitioner that a reply may be
served and filed within 15 days or as the court specifies. The court may
not deny the petition until that time has expired.250

If the court determines that the petition is sufficient on its face, “the
court is obligated by statute to issue a writ of habeas corpus.”251
Furthermore,
[t]he role that the writ of habeas corpus plays is largely procedural. It
“does not decide the issues and cannot itself require the final release of
the petitioner.” Rather, the writ commands the person having custody of
the petitioner to bring the petitioner “before the court or judge before
whom the writ is returnable.”252

The court in People v. Romero noted that:
Judicial practice and decisions of . . . [the California Supreme Court]
have authorized one deviation from the procedure specified in the Penal
Code. Because “appellate courts are not equipped to have prisoners
brought before them . . . [the Supreme Court] and the Courts of Appeal
developed the practice of ordering the custodian to show cause why the
relief sought should not be granted.” When used as a substitute for the
writ of habeas corpus, the order to show cause “directs the respondent
custodian to serve and file a written return.”253

The court may not substitute the informal response for a writ of
habeas corpus or an order to show cause.254
248. Romero, 883 P.2d at 391.
249. In re Seaton, 95 P.3d 896, 899 (Cal. 2004).
250. CAL. R. CT. 8.380(c).
251. Romero, 883 P.2d at 391 (citing CAL. PENAL CODE § 1476 (West 1994)).
252. Id. (internal citations omitted) (quoting People v. Getty, 123 Cal. Rptr. 704, 709 (Ct. App.
1975); CAL. PENAL CODE § 1477 (West 1975)).
253. Id. (internal citations omitted) (quoting In re Hochberg, 471 P.2d 1, 4 n.2 (Cal. 1970)).
254. See id. at 393.

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The written return must allege facts establishing the legality of the
petitioner’s custody, and it “becomes the principal pleading.”255 Further,
“[u]pon the submission of the written return, the petitioner ‘may deny or
controvert any of the material facts or matters set forth in the return.’”256
This response is known as a traverse257 and it “is through the return and the
traverse that the issues are joined in a habeas corpus proceeding.”258
At this point, the court
must determine whether an evidentiary hearing is needed. If the written
return admits allegations in the petition that, if true, justify the relief
sought, the court may grant relief without an evidentiary hearing.
Conversely, consideration of the written return and matters of record
may persuade the court that the contentions advanced in the petition lack
merit, in which event the court may deny the petition without an
evidentiary hearing. Finally, if the return and traverse reveal that
petitioner’s entitlement to relief hinges on the resolution of factual
disputes, then the court should order an evidentiary hearing. Because
appellate courts are ill-suited to conduct evidentiary hearings, it is
customary for appellate courts to appoint a referee to take evidence and
make recommendations as to the resolution of disputed factual issues.
Alternatively, an appellate court may specify in the order to show cause
that the return is to be filed in the superior court. This effectively
transfers the proceeding to superior court, and that court will conduct any
evidentiary hearing that may be required. After the evidentiary hearing,
the court in which the return has been filed will then either grant or deny
relief based upon the law and the facts as so determined.259

The average delay between the filing of a state petition for a writ of
habeas corpus and the filing of the California Supreme Court’s decision is
twenty-two months.260 This delay occurs because, in the vast majority of
cases, the California Supreme Court decides the case on the basis of the
informal response alone. Out of 689 state habeas corpus proceedings filed
since 1978,261 the California Supreme Court has issued orders to show
cause in fifty-seven cases.262 In the same time period, it has held
evidentiary hearings only thirty-one times.263 In over 200 cases filed since
255.
256.
257.
258.
259.
260.
261.
262.
263.

Id. at 392.
Id. (quoting CAL. PENAL CODE § 1484 (West 1994)).
Id.
Id.
Id. at 392–93 (internal citations omitted).
Docket Database, supra note 14.
Many prisoners file more than one petition for habeas corpus.
Docket Database, supra note 14.
Id.

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1978, the California Supreme Court issued decisions without a request for
an informal response, an order to show cause, or an evidentiary hearing.264
This research illustrates that relatively few resources are devoted to
investigating a petitioner’s habeas corpus claims at the state court level.
This is due to both time and budgetary constraints. Attorneys representing
death row inmates in state habeas corpus proceedings have only three years
from the date of their appointment, and $25,000 in expenses, to investigate
claims and file a petition.265 As a result, many claims are not fully
explored. And as frequently happens in such cases, the California Supreme
Court does not issue a written opinion explaining its reasoning.266
The absence of a developed factual record and an articulated analysis
from the California Supreme Court regarding the reasons for denying relief
can contribute to lengthier delays when the prisoner seeks relief in federal
court or in subsequent state habeas proceedings.267 As a result of its
overwhelming backlog of death penalty cases and its duty to review civil
and other criminal cases on appeal, the Supreme Court has been forced to
reject the requests from federal judges in the Ninth Circuit asking that
orders denying a petition for a writ of state habeas corpus spell out the
reasons for the denial.268 Chief Justice Ronald George explained in
response to an inquiry from U.S. Senator Diane Feinstein “that drafting and
reviewing an order containing more information than the basic ground for
denying relief consumes far more time on the part of both staff and the
justices, to the detriment of the court’s performance of its responsibilities in
noncapital cases.”269 After receiving Chief Justice George’s response,
Senator Feinstein wrote to Governor Arnold Schwarzenegger requesting
his assistance in addressing the problem of the “lengthy and unnecessary
delays” in processing death penalty cases in California because of
inadequate funding.270 Senator Feinstein concluded that “[t]he absence of a
264. Id. Supreme Court staff has indicated that “[f]or the past 12 or so years . . . we have ordered
informal response briefing in almost every ‘initial’ petition, and in the vast majority of ‘successive’
petitions as well.” See George Letter, supra note 154.
265. DEATH POLICY, supra note 233, at Policy 3, 1-1.1, 1-1.2.
266. Docket Database, supra note 14.
267. Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What’s Wrong with It
and How to Fix It, 33 CONN. L. REV. 919, 927–28 (2001) (suggesting that the efficacy of AEDPA is
undermined because “state courts [do not] accept their . . . responsibility seriously and provide death
row inmates with a thorough, meaningful review of their claims. . . . [I]n too many states, the state
habeas process is merely perfunctory.”).
268. Letter from the Honorable Ronald M. George, Chief Justice of the California Supreme Court,
to Diane Feinstein, U.S. Senator (Nov. 29, 2005) (on file with author).
269. Id.
270. Letter from Diane Feinstein, U.S. Senator, to Arnold Schwarzenegger, Governor of
California (Dec. 8, 2005), available at http://feinstein.senate.gov/05releases/r-habeas.htm.

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thorough explanation of the [California Supreme] Court’s reasons for its
habeas decisions often requires federal courts to essentially start each
federal habeas death penalty appeal from scratch, wasting enormous time
and resources.”271
B. RECOMMENDATIONS FOR REDUCING DELAY IN STATE HABEAS
PROCEDURE
1. Review of Original State Habeas Corpus Petitions by the Superior Court
The California Constitution should be amended to require that original
petitions for a writ of habeas corpus be filed in the superior court where the
judgment of death was entered. This change would radically reduce the
Supreme Court’s backlog. Despite the fact that the superior courts currently
have jurisdiction over original habeas corpus petitions, such petitions are
filed in the Supreme Court because the Supreme Court is the only court
authorized to compensate appointed counsel. Accordingly, the California
Legislature should amend the law to provide compensation for appointed
counsel when state habeas corpus petitions are filed in the superior court
where the condemned prisoner was sentenced to death.
The potential for reducing the delay of finally adjudicating a sentence
of death by having the original habeas corpus petition filed in the superior
court is tremendous. There are 1499 superior court judges in California.272
An average of thirty-eight state habeas corpus petitions in death penalty
cases are filed each year in the California Supreme Court.273 Spreading
these state habeas corpus petitions among the trial courts would
dramatically reduce the Supreme Court’s caseload while having a minimal
impact on the superior courts. Trial court judges are uniquely qualified to
hear original habeas corpus claims because they are already familiar with
the evidence presented at trial. And in order to facilitate appellate review,
the superior court judge hearing the petition should be required to issue a
written order explaining the reasons for granting or denying habeas corpus
relief.
The Legislature should also revise the law to provide for the right of
appeal from the denial of a petition for state habeas corpus relief in a
271. Id.
272. California Judicial Selection, at http://www.ajs.org/js/CA_methods.htm (last visited May 10,
2007).
273. See 2006 STATISTICS REPORT, supra note 109, at 4 (providing data from which the average
can be calculated).

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capital case to the California Courts of Appeal with jurisdiction over that
superior court. The California Courts of Appeal should be required to file
an opinion setting forth the reasons, and the case law, that support its
decision to affirm or deny a superior court’s order in a petition for habeas
corpus relief in capital cases. California law should also be amended to
permit the Supreme Court to exercise its discretion whether to review the
opinion of a California Court of Appeal in affirming or denying a superior
court’s judgment in a state habeas corpus proceeding. If the petition for
review is granted, the California Supreme Court should be required to
publish an opinion setting forth the rationale for its decision.
Requiring written orders from the superior courts and the California
Courts of Appeal that address the merits of a petitioner’s state habeas
corpus claims will decrease delays incurred later in the process when the
inmate files a federal habeas corpus petition. Under the existing system,
federal courts do not have the benefit, in most cases, of a written order
from the California Supreme Court explaining the reasons for its decision.
This current practice places the burden on federal district courts to
determine whether the death row inmate’s federal constitutional claims
have merit.
2. Continuity of Habeas Counsel and Investigation of Habeas Claims
The California Legislature and Congress should jointly fund a
state/federal Capital Habeas Agency to represent death row inmates
convicted in California. Such an agency would provide continuity of
representation in the state and federal court systems.274 Financial resources
should be funded by both the state and federal governments to permit an
exhaustive investigation of a death row inmate’s claims. The practical
effect of underfunding the investigations that must occur in developing an
inmate’s habeas corpus claims at the state level is that the federal
government ultimately pays for the investigation years later when the
inmate files a federal habeas corpus petition. The district courts must allow
time for proper investigations to be completed. If properly funded, a joint
state/federal Capital Habeas Agency would permit a complete investigation
of the facts that support allegations of federal constitutional violations in a
state habeas corpus proceeding. If habeas corpus relief were denied in a
state court, the same counsel could file an application for a writ of habeas
corpus in federal court pursuant to 28 U.S.C. § 2254. With continuity of
counsel, all federal constitutional claims would have been investigated and
274.

See POWELL COMMITTEE REPORT, supra note 9, at 4.

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exhausted before the state’s highest court, thereby avoiding delays that now
occur because viable federal constitutional claims were not investigated or
exhausted in the California court system.
C. STATE PRISONER FEDERAL HABEAS CORPUS PROCEEDINGS
Pursuant to 28 U.S.C. § 2254(a), a state prisoner may file an
application for a writ of habeas corpus in federal court “on the ground that
he is in custody in violation of the Constitution or laws or treaties of the
United States.”275 If the death row inmate does not have counsel, a federal
district court has the jurisdiction to grant the inmate’s request for the
appointment of counsel to prepare an application for a writ of habeas
corpus.276 The application shall not be granted “unless it appears that . . .
the applicant has exhausted the remedies available in the courts of the
State.”277
If a death row inmate files an application for habeas corpus relief in a
federal district court pursuant to § 2254 that asserts claims exhausted
before a state’s highest court as well as unexhausted claims, the district
court may provide the applicant with discrete options. First, the district
court can “dismiss such ‘mixed petitions,’ leaving the prisoner with the
choice of returning to state court to exhaust his claims or of amending or
resubmitting the habeas corpus petition to present only the exhausted
claims to the district court.”278
In 2005, the Supreme Court provided condemned prisoners with an
additional option. It held that a district court may order that further
proceedings on the mixed petition be stayed pending exhaustion of the
federal constitutional claims before the highest state court.279 The Court
explained that “[a]s a result of the interplay between AEDPA’s 1-year
statute of limitations and Lundy’s dismissal requirement, petitioners who
come into federal court with ‘mixed’ petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted claims.”280
275. 28 U.S.C. § 2254(a) (2000).
276. 18 U.S.C.A. § 3599(a)(2) (West 2006). See also McFarland v. Scott, 512 U.S. 849, 855
(1994) (concluding that a petitioner has the right to have counsel prepare an application for habeas
corpus and that the district court has jurisdiction to enter a stay of execution based on the request for
appointment of counsel).
277. 28 U.S.C. § 2254(b)(1)(A).
278. Rose v. Lundy, 455 U.S. 509, 510 (1982).
279. Rhines v. Weber, 544 U.S. 269, 275–77 (2005).
280. Id. at 275.

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The Court set several limits to the issuance of a stay. First, the
petitioner must demonstrate good cause for failing to present the claims to
the state’s highest court.281 Second, the district court should not order a stay
when the unexhausted claims are “plainly meritless.”282 If a district court
issues a stay, its “discretion in structuring the stay is limited to the
timeliness concerns reflected in AEDPA.”283 The Court also noted that
“district courts should place reasonable time limits on a petitioner’s trip to
state courts and back.”284
Title 28 U.S.C. § 2254(b)(2) states that “[a]n application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State.”285 The statute further requires that a “State shall not be deemed to
have waived the exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel, expressly waives the
requirement.”286 Finally, the statute stipulates that “[a] 1-year period of
limitation shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State Court.”287
Congress has enacted a separate time requirement for the filing of an
application for habeas corpus relief brought by prisoners subject to capital
punishment.288 An application by prisoners in state custody subject to
capital punishment must be filed “not later than 180 days after final State
court affirmance of the conviction and sentence on direct review or the
expiration of the time for seeking such review” pursuant to the USA Patriot
Improvement and Reauthorization Act of 2005.289 The 180-day limitation
is applicable only if “the Attorney General of the United States certifies
that a State has established a mechanism for providing counsel in
postconviction proceedings as provided in section 2265.”290
Prior to the 2005 amendment to 28 U.S.C. § 2261, California had not
established by statute or a court rule
281. Id. at 277.
282. Id.
283. Id.
284. Id.
285. 28 U.S.C. § 2254(b)(2) (2000).
286. Id. § 2254(b)(3).
287. Id. § 2244(d)(1).
288. Id. §§ 2263–2266.
289. USA Patriot Improvement and Reauthorization Act of 2005, 28 U.S.C.A. § 2263 (a), (b)
(West 2006).
290. 28 U.S.C.A. § 2261 (West 2006).

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a mechanism for the appointment, compensation, and payment of
reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners whose capital
convictions and sentences have been upheld on direct appeal to the court
of last resort in the State or have otherwise become final for State law
purposes.291

Since the amendment, the attorney general has not yet certified that
California has an appropriate mechanism for appointing counsel.
Pursuant to 28 U.S.C. § 2253, a final order for habeas corpus relief
“shall be subject to review, on appeal, by the court of appeals for the circuit
in which the proceeding is held.”292 An appeal may not be taken to the
Court of Appeals “[u]nless a circuit justice or judge issues a certificate of
appealability” from “the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a State
Court.”293
Capital prisoners do not have the right to appeal to the United States
Supreme Court from the affirmance by a United States Court of Appeals of
a district court’s dismissal or denial of an application for habeas corpus
relief. Instead, the Supreme Court has jurisdiction over cases reviewed by
the Courts of Appeals “[b]y writ of certiorari granted upon the petition of
any party to any civil or criminal case, before or after rendition of judgment
or decree.”294 A writ of certiorari “is not a matter of right, but of judicial
discretion.”295
A state prisoner’s second or successive application that presents a
claim that was presented in a prior application “shall be dismissed.”296 A
claim that is presented in a second or successive habeas corpus application
that was not previously presented shall similarly be dismissed unless the
291. 28 U.S.C. § 2261(b) (2000) (current version at 28 U.S.C.A. § 2261(b)); Ashmus v.
Woodford, 202 F.3d 1160 (9th Cir. 2000) (concluding that California’s procedure for appointment of
habeas counsel did not qualify under AEDPA).
292. 28 U.S.C.A. § 2253(a) (West 2006).
293. Id. § 2253(c)(1)(A).
294. 28 U.S.C. § 1254 (2000).
295. SUP. CT. R. 10.
296. 28 U.S.C. § 2244(a), (b)(1) (2000). Section 2244(a) provides:
No circuit or district judge shall be required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to a judgment of a court of the United
States if it appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus . . . .
Id. § 2244(a). Section 2244(b)(1) provides: “A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall be dismissed.” Id. §
2244(b)(1).

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applicant “relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court.”297 A second or
successive petition will not be dismissed if
the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence, and the facts
underlying the claim, if proven and viewed in the light of the evidence as
a whole, would be sufficient to establish by clear and convincing
evidence that, but for the constitutional error, no reasonable fact finder
would have found the applicant guilty of the underlying offense.298

The total average delay from the filing of the initial application for
federal habeas corpus relief to the grant or denial of relief by a district court
is 6.2 years.299
As discussed above, lawyers who file state habeas corpus petitions on
behalf of death row inmates in California currently do not receive sufficient
funds for investigation of their clients’ claims. As a result, lawyers
appointed to represent death row inmates in federal habeas proceedings are
forced to conduct an investigation at federal government expense to
determine all the facts necessary to support exhausted federal constitutional
claims and to discover facts necessary to prove unexhausted claims.300 This
responsibility delays federal habeas corpus procedures an average of 2.4
years.
The failure of the California Legislature to provide sufficient funding
to permit state habeas counsel to investigate each death row inmate’s
federal constitutional claims cannot be understated. It shifts to the federal
government the burden of providing sufficient funds to permit federal
habeas counsel to discover evidence to demonstrate additional federal
constitutional violations. Because the United States Congress has
concluded that persons whose federal constitutional rights have been
297. Id. § 2244(b)(2)(A).
298. Id. § 2244(b)(2)(B).
299. Docket Database, supra note 14.
300. Counsel may also be required to employ experts, with the court’s approval, to unearth
mitigating facts not presented at trial that may have persuaded the jury to recommend life imprisonment
instead of death. The types of experts requested by counsel to assist them in preparing a federal habeas
petition include the following: mitigation specialists, social historians, child abuse experts, addiction
experts, institutional adjustment experts, psychologists, psychiatrists, neuropsychologists,
neuropsychiatrists, toxicologists, pathologists, ballistics experts, fingerprint analysts, criminologists,
mental health experts, atomic absorption experts, statisticians, criminalists, fair cross-sections experts,
trial experts, fetal alcohol experts, hypnosis experts, sociological experts, gunshot residue experts,
human vision experts, DNA experts, forensic serologists, eyewitness/memory experts, correctional
consultants, jury selection experts, psychopharmacologists, serology experts, polygraph experts, blood
spatter experts, social anthropologists, and rape experts.

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violated in a state court’s criminal proceedings must have their judgment of
death vacated, it must consider whether it should subsidize investigation at
the state habeas corpus level, rather than fund the same investigation at the
federal level, years later.
Additionally, seventy-four percent of state prisoner federal habeas
corpus applications filed by California death row inmates are stayed for the
exhaustion of state remedies.301 The average delay for the exhaustion of
state remedies before the California Supreme Court is 2.8 years.302 The
average delay between the date a federal district court lifts the stay for
exhaustion of California state remedies and renders its decision is 3.8
years.303 The average delay between a request for federal habeas corpus
counsel and the entry of the district court’s final order where a stay has
been granted to exhaust claims in state courts is 8.3 years.304 The average
length of a federal habeas corpus proceeding where no stay was issued to
exhaust claims in state court is 6.4 years.305
The average delay from the filing of a notice of appeal from the
decision of the district court granting or denying a death row inmate’s
federal application for a writ of habeas corpus to the decision of the threejudge panel of the Ninth Circuit is 2.2 years.306 The average delay from the
decision of this three-judge panel to a decision respecting rehearing en banc
is 8.7 months.307 The average delay from the decision of the three-judge
panel to the United States Supreme Court’s decision respecting the
inmate’s petition for a writ of certiorari is 1.3 years.308 The average delay
from a decision of the Ninth Circuit respecting rehearing en banc to the
United States Supreme Court’s decision respecting the inmate’s petition for
a writ of certiorari is 6.6 months.309 The average delay from an en banc
opinion of the Ninth Circuit to the United States Supreme Court’s decision
respecting the inmate’s petition for a writ of certiorari is 3.6 months.310 The
Ninth Circuit has reheard en banc only six death penalty habeas corpus
cases since 1978.311
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.
311.
F.3d 815

Docket Database, supra note 14.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
See Cooper v. Woodford, 358 F.3d 1117 (9th Cir. 2004) (en banc); Payton v. Woodford, 299
(9th Cir. 2002) (en banc); Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc);

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D. RECOMMENDATIONS TO REDUCE DELAY IN FEDERAL HABEAS CORPUS
PROCEEDINGS
It has become conventional wisdom that the majority of the delay in
reviewing capital cases is attributable to federal habeas corpus
proceedings.312 Much of the delay in federal habeas corpus proceedings,
however, is attributable to the need to exhaust state remedies and to
conduct investigations. Accordingly, the suggestions made with regard to
state habeas corpus proceedings will likely speed up federal habeas corpus
proceedings as well. A written opinion from the trial court and the
California Courts of Appeal regarding the reasons for denying habeas
corpus relief will assist the United States District Court in determining
whether the death row inmate’s federal constitutional claims have merit. If
all of the factual investigation is done during the state habeas corpus
proceedings, there will be no need to conduct an investigation at the federal
level. Additionally, if there is continuity of counsel between state and
federal habeas corpus proceedings, federal habeas corpus petitions filed by
death row inmates are less likely to include unexhausted claims. Counsel’s
familiarity with the case at the federal level due to the representation of the
death row inmate at the state habeas corpus proceedings is also likely to
hasten federal review of state capital convictions and sentences.
VI. CONCLUSION
To determine the causes of delays in reviewing the validity of
judgments of death for persons convicted of a capital crime in California, it
was necessary to study the docket entries for each prisoner who has been
sentenced to death in California313 since the death penalty was reinstated in
1978. The results of this research confirmed California Supreme Court
Chief Justice Ronald George’s opinion that the review procedures for
capital cases are “dysfunctional,” and Circuit Judge Kozinski’s view that
the existence of a death penalty has become an “illusion.”
McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999) (en banc); Calderon v. U.S. Dist. Court for the
Cent. Dist. of Cal., 163 F.3d 530 (9th Cir. 1998) (en banc); Thompson v. Calderon, 120 F.3d 1045 (9th
Cir. 1997) (en banc); Docket Database, supra note 14.
312. See, e.g., Tribune Editorial, Death Penalty Cases Unnecessarily Held up by Federal Judges,
E. VALLEY TRIB. (Scottsdale, Ariz.), Aug. 20, 2006 (discussing the death penalty in Arizona and
bemoaning the fact that capital cases are “sitting for five or six years on habeas review”); Egelko, supra
note 120 (discussing a shortened statute of limitations for filing federal habeas corpus applications
attached to a version of the Patriot Improvement and Reauthorization Act of 2005 and noting its
intention to “shorten timetables for capital case appeals”).
313. The dockets for prisoners who died while on death row by means other than execution were
not reviewed or included in the Docket Database.

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This research has identified the sources of these unacceptable delays.
Because of the current number of death row inmates, the seven justices of
the California Supreme Court cannot keep up with an ever-increasing
backlog of automatic appeals and habeas corpus petitions in capital cases,
while at the same time meeting their responsibility to review civil cases and
convictions in noncapital cases. The California Constitution must be
amended to shift this burden to the justices of the Courts of Appeal, with
discretionary review by the Supreme Court to correct any erroneous rulings
or to resolve conflicts between the various districts and divisions of
California’s intermediate appellate courts. If the California Legislature
wishes to make its death penalty laws and procedures functional instead of
illusory, it must enact laws to remove the impossible burden on the
California Supreme Court to review every appeal automatically from a
judgment of death and each petition for state habeas corpus relief.
The California Legislature should also increase the compensation paid
to appointed counsel in death penalty cases. Despite its Herculean efforts,
the California Supreme Court has only been able to induce a limited
number of qualified lawyers to accept appointment to represent death row
inmates because the hourly rate is only $140. For that reason, the delay in
appointing counsel for death row inmates is more than three years. This
delay alone may prejudice the right to a fair trial for those prisoners whose
convictions must be set aside because of trial court errors in the admission
of evidence or in its jury instructions, prosecutorial misconduct, or state
and federal constitutional violations. Furthermore, the present absence of
continuity of representation by the same habeas counsel in both state and
federal courts contributes to the delay reflected in federal habeas corpus
proceedings filed on behalf of death row inmates.
The failure of the California Legislature to provide adequate funds for
the investigation of errors not in the trial record has shifted a significant
burden to lawyers who are appointed to assist death row inmates in
obtaining federal habeas corpus relief. The investigation of alleged federal
constitutional errors has added years to the time necessary for the federal
courts to determine whether federal habeas corpus relief must be granted.
This delay could be reduced by many years if the lawyers appointed to
represent death row inmates in state habeas corpus proceedings were
provided sufficient funds to investigate and exhaust every constitutional
claim.
The Supremacy Clause of the United States Constitution compels
California’s courts to ensure that each person accused of a capital crime
receives the protections set forth in the Bill of Rights. This places a great

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financial burden on the state court system. Thus, Congress should provide
financial assistance to state courts to enable them to honor their
responsibility to ensure that death row inmates’ federal constitutional rights
are fully protected. The cost of this assistance to the state would be
defrayed by the federal taxpayers’ dollars that would be saved by not
having to compensate lawyers appointed pursuant to 28 U.S.C. § 2254 for
their services and not having to pay for the cost of investigation at the
federal level. It would also substantially reduce the average delay of six
years required to review applications for habeas corpus relief.
In addition to providing funds to increase the hourly rate paid to
appointed counsel and to pay for the costs of an adequate investigation, the
California Legislature can also help increase the number of lawyers
qualified to represent death row inmates. The Legislature could provide
grants to law schools to train students and lawyers who wish to specialize
as appellate advocates and/or habeas corpus litigators in capital cases.
It is my profound hope, as the messenger of these alarming statistics
regarding the decades of delay in reviewing death penalty cases, that these
data will stimulate the California Legislature and experts in criminal
procedure to step forward with their own solutions. We must bring an end
to the appalling delay in reviewing California death penalty convictions
and reduce the wasteful expenditure of millions of taxpayer dollars in
housing death row inmates for decades before determining whether their
conviction or sentence should be vacated or affirmed. Without action by
the California Legislature, the delays in reviewing capital cases will
continue to grow in California to the point where the United States
Supreme Court may some day hold that such imprisonment is, in and of
itself, cruel and unusual punishment.